Off the Kuff Rotating Header Image

City Attorney

Are you nostalgic for some strip club litigation?

Then this is your lucky day.

The legal fight over the striptease business in Houston has heated up, again.

Two topless bars are suing the city of Houston over a controversial, years-old legal settlement they say unfairly hampers business at all but a select group of clubs.

In a June 1 filing, lawyers for Chicas Cabaret and Penthouse Houston argued that the 2013 settlement — which allowed sixteen strip clubs to skirt the city’s sexually-oriented business ordinance by making annual payments to fund an anti-human trafficking unit in the Houston Police Department — amounts to a commercial bribery scheme.

The two north Houston clubs argue the settlement is “unlawful, unfair, and anti-competitive in nature,” and impacted their ability to do business.

“Our position is that discriminating against some clubs and showing favoritism towards others is just plain wrong under the Constitution and Texas law,” said Spencer Markle, attorney for Chicas Cabaret and Penthouse Houston. “That’s why we’re taking them to task.”

The strip clubs are seeking a restraining order that would either prevent city officials from allowing the “sweet 16” clubs to avoided the city’s sexually-oriented business ordinance, or allow Chicas and Penthouse to join the agreement under the same terms.

“We just don’t want to be at a business disadvantage compared to the other clubs that are similarly situated,” Markle said.

[…]

Legal experts said the city’s recent settlement with Fantasy Plaza and the new lawsuits raised renewed questions about the city’s sexually-oriented business ordinance and the way it regulates sexually oriented businesses.

“Why is the city keeping an the ordinance on the books and basically exempting (businesses) from it?” said Josh Blackman, a professor at the South Texas College of Law Houston. “Normally the point of a statute is to enforce it equally. And if they’re just cutting deals with every strip club that asks for it, just repeal the damn statute.”

Markle’s suit echoes the same argument made by lawyers for Fantasy Plaza Cabaret when they sued the city of Houston earlier this year.

See here, here, and here for the background on the 2013 litigation. I thought that settlement was reasonable enough, but I can’t think of a good rebuttal to the argument that if this deal is available to some clubs, it should be available to all of them. I look forward to seeing how this gets resolved.

Darian Ward resigns

Adios.

Mayor Sylvester Turner’s press secretary resigned Friday afternoon, three weeks after news broke that she had been suspended for routinely conducting personal business on city time and failing to release public records.

Ward sent or received roughly 5,000 pages of emails about personal business from her government account over the last four years, many of which dealt with reality shows she was pitching to television networks or a charity for which she serves as an advisor.

Ward, who earned $93,712 annually, was suspended for 10 days without pay in late December.

Her resignation came hours before new emails showed Ward again had tried to block the release of a portion of the personal business documents she sent on city time. The Houston Chronicle and other news outlets sought the emails under the Texas Public Information Act.

“I believe many of the documents which include show concepts, treatments, etc. are protected through the Writers Guild Association’s registration. Legal needs to be advised,” Ward wrote to colleagues two weeks ago.

Assistant City Attorney Danielle Folsom replied last week, saying the city attorney’s office “does not believe that registration with the Writer’s Guild of America makes information confidential under the TPIA.”

Ward still wanted to seek an opinion from the Texas attorney general’s office, emails show. Pamela Ellis, founder of a charity Ward was promoting on city time, also asked the city to withhold documents.

As a result, the city released roughly 2,500 pages of Ward’s emails on Jan. 19.
With the release of that first batch, Ward expressed confusion that her attempt to intervene had not fully halted the city’s records release.

“How were emails released when I’m waiting to write the AG’s office?” she wrote to coworkers that evening.

The city distributed nearly 1,200 additional pages Thursday, accompanied by a letter to the attorney general’s office.

“The city takes no position with respect to the public availability of the requested information and will not raise any arguments on behalf of any third party,” Folsom wrote in requesting a ruling from the attorney general’s office.

See here for some background. As I said at the time, if that original story was all there was – if we knew all there was to know when that first story came out – then we’d all forget about it soon enough. That wasn’t the case, and so here we are. We’ve had email in the workplace for some 20 years now, and you’d think people would be clear on what “appropriate use” is by now. I honestly don’t know what Ward was thinking, but at least she’ll have more time to work on that show she’s trying to develop now. Her successor is Mary Benton, like Ward a former TV news reporter, who had worked for Gene Locke during his time as County Commissioner. I know Mary from the local politics scene, and I wish her well in the new gig.

Council may vote on joining SB4 litigation tomorrow

It will happen, though perhaps not tomorrow.

Mayor Sylvester Turner

Houston City Council is poised to vote [this] Wednesday on whether to join litigation challenging the constitutionality of Texas’ new “sanctuary cities” law, days before the case’s preliminary hearing in San Antonio.

The city attorney’s office has recommended Houston sue over the law known as Senate Bill 4, saying it authorizes unconstitutional searches, seizures and detentions, violates officials’ First Amendment rights, unlawfully limits local authority and is unconstitutionally vague.

“The office of the city attorney recommends joining the litigation to address the constitutional and civil rights of city elected and appointed officials and Houston residents, as well as to protect the authority of the city to effectively manage and direct the limited public safety resources of the city and protect the public,” the city attorney’s office wrote in a request for council action.

[…]

A Chronicle survey of City Council members last week suggests the city likely will join the legal fight over SB4, which goes into effect Sept. 1.

See here for the background. I say “may vote” only because I expect someone, probably several someones, to tag it for a week. If you’re looking for something to do about this, call your district Council member and the five At Large members and tell them that you want them to support this action. Council members have been hearing from their State Reps, and it would help if they heard from their constituents, too.

Mayor Turner names new City Attorney

From the inbox:

Ronald Lewis

Mayor Sylvester Turner has announced his selection of Ronald C. Lewis as the new city attorney. Like the mayor, Lewis is Harvard educated and has run his own law firm.

“I wanted a lawyer’s lawyer, someone highly respected who can relate well to me as well as City Council and the general public,” said Mayor Turner. “Ronald certainly fits this description. He is an outstanding lawyer with excellent credentials and the experience necessary to run the law firm that is part of City government.”

Before co-founding Marshall & Lewis LLP in 2006, Lewis was a partner at Baker Botts LLP, which he joined right after graduating from Harvard with honors in 1983. He is a trial lawyer with more than 30 years of experience handling complex cases for businesses and individuals in the energy, real estate, construction, financial and manufacturing industries. He is a member of the State Bar of Texas and the Houston Bar Association as well as a Life Fellow at the Houston Bar Foundation, where he was chairman of the board in 2000. His undergraduate degree is from the Woodrow Wilson School of Public and International Affairs at Princeton University.

“I look forward to serving the people of Houston, their elected officials and city employees,” said Lewis.

Lewis’ professional affiliations include the Best Lawyers in America, the American Law Institute, and The International Association of Defense Lawyers. In addition, he has served as a member of the Houston Bar Association Minority Opportunities in the Legal Profession Committee, as a steering committee member for the State Bar of Texas Minority Counsel Program and on the Commission for Lawyer Discipline. He volunteers for the Center for Public Policy Priorities and has previously served as a member of the University of Texas MD Anderson Cancer Center Board of Visitors, the South Texas College of Law Board of Trustees, Texas Appleseed, Neighborhood Centers Inc., and Junior Achievement of Southeast Texas.

Lewis was selected after a competitive search coordinated by a panel comprised of local lawyers. There were about 30 applicants who went through the selection process. Houston City Council is expected to be asked to confirm Lewis’ appointment in two weeks. He will start work May 2, 2016 and is replacing retiring City Attorney Donna Edmundson, who has agreed to stay through the end of May to help with the transition.

As the Chron story notes, Lewis has maintained a fairly low news profile, with “his selection by Harris County officials to represent disgraced former District Attorney Chuck Rosenthal in a 2008 contempt of court case related to Rosenthal’s deletion of emails that were under subpoena in a federal court case” being the only cited exception. Lewis inherits the ReBuild Houston re-litigation and the ongoing term limits ballot language lawsuit as his main action items. Beyond that, we’ll have to see what his priorities are. Welcome aboard, Ronald Lewis.

UPDATE: Here’s the full Chron story.

Resign to run has kicked in for Council members

Another change that our new term limits law has wrought.

Houston elected officials who become a candidate for another elected office are now automatically required to resign their current seat, uncharted territory for city officeholders who previously had not been subject to the so-called “resign-to-run” provision of the Texas Constitution.

The requirement that has long applied to county officials also covers officeholders in municipalities whose terms are longer than two years. Voters extended the terms of Houston elected officials to four years, from two, last November, triggering the change.

The “resign-to-run” clause pertains to those with more than one year and 30 days left in their terms who announce their candidacy or become a candidate in any general, special or primary election.

The provision does not appear immediately to affect three City Council members – Dwight Boykins, Jerry Davis and Larry Green – who have expressed interest in the late Harris County Commissioner El Franco Lee’s seat, because it would not kick in until Democratic precinct chairs select someone to replace Lee on the November ballot.

[…]

Executive committee nominations aside, a memo sent Tuesday by City Attorney Donna Edmundson and obtained by the Chronicle defines “announcing candidacy for office” as “making a written or oral statement from which a reasonable person may conclude that the individual intends, without qualification, to run for an office.”

Edmundson added: “A statement made in a private conversation does not constitute an announcement of candidacy for the purposes of the ‘resign to run’ provision. Likewise, a statement indicating an interest in an office is not considered an announcement of candidacy.”

[Mark] Jones said the new rules further constrain elected city officials.

“Previously, they effectively could have their cake and eat it, too, in that they could run while keeping their City Council position,” Jones said. “Now, they’re going to have to actually make a hard choice, which in some cases may be a risky move.”

Yes, but let’s not go overboard. Not that many people that would have been affected by resign-to-run took advantage of their prior exemption from it. Going back a decade, I can think of six sitting municipal officeholders who were also candidates for other offices. Three of them were in the last year of their final term – Bill White in 2009, Wanda Adams in 2013, and Ed Gonzalez in 2015 – and thus had less than a year and a month remaining in office. Only three people would have had to resign to run – Shelley Sekula Gibbs, who ran for Congress in 2006; Adrian Garcia, who ran for Sheriff in 2008; and Mike Sullivan, who ran for Tax Assessor in 2012. Sekula Gibbs and Garcia resigned after winning their November elections, thus triggering special elections to succeed them the following May, while Sullivan resigned after winning his primary, which allowed the special election to fill his seat to happen that same November.

The rest of the story is about filling Commissioner El Franco Lee’s spot on the November ballot, and it’s mostly stuff we already know. The main thing here is that this change probably won’t have much effect, though it could alter how some incumbents view the rest of the election cycle. If anyone decides to run for something in 2018, we’ll know.

Packing heat at the zoo

Yeah, this won’t cause any controversy.

Not any more

Houston Zoo officials have been forced to remove long-standing “no guns” signage from the city-owned property after a prominent gun rights attorney filed a complaint, marking the first visible local example of a new state law that targets government entities illegally restricting concealed carry.

Though the Houston Zoo is operated by a private entity, the Hermann Park land it sits on belongs to the city. Private business owners can restrict gun usage; on most government properties, however, licensed Texans are allowed to carry guns.

Now, under legislation that took effect Sept. 1, residents who believe governments are violating that law have a streamlined and strengthened means to file a complaint locally, with the option of appealing to the Texas attorney general. Local governments risk daily fines of up to $10,000, depending on the number of violations, if they fail to remove signage deemed illegal.

Houston attorney T. Edwin Walker with Texas Law Shield, a gun rights advocacy legal firm, quickly put the law to practice Sept. 3, sending a letter to the city stating the zoo’s “no guns” signs were illegal.

“A week later I get a call from the associate general counsel from the city of Houston that they couldn’t argue with my argument,” Walker said. “There was no getting around it.”

The signs came down Sept. 11, said zoo spokeswoman Jackie Wallace. Since then, zoo and city officials have been “investigating the legal implications of the request” and consulting with other Texas cities, Wallace said. Zoo officials said they’ve long believed the facility qualifies as an educational institution under state law, permitting the gun ban.

The same reasoning has been applied at the privately run but publicly situated Dallas Zoo, where officials are now confronting the same problem. A spokeswoman for the Dallas Zoo did not return requests for comment Monday about what the facility has done with its signs.

In Houston, Wallace said there was “no angst” between the zoo and the city. Both entities were working together to figure out if there were any legal remedies.

“We do recognize that this has the potential to confuse or concern our guests and members,” Wallace said. “And we want to emphasize that this will not alter our number-one priority, which is the safety of our guests, employees and animals.”

The Press talked to T. Edwin Walker:

“I guarantee there is no license holder who is going to go to the zoo in anticipation of shooting a giraffe in front of a bunch of school children,” Walker said in an interview. “The issue is just that this is a place where the government is not allowed to tell people that they can’t carry a licensed handgun. The Texas government has recognized that people have the right to defend themselves. How do they do that? With a gun.”

City crime statistics (and common sense) indicate the Houston Zoo is hardly the most unsafe place in town. It sits in a crime beat that stretches from the Southwest Freeway in the north to Old Spanish Trail in the south, with Main Street and Highway 288 serving as the east and west border, respectively. Since January 2010, 11 murders have been reported in that zone, and none of them happened at the zoo. By comparison, there have been 40 reported murders during the same time in the zone that encompasses Houston’s Sunnyside neighborhood.

Still, Walker said he wouldn’t necessarily feel safe and sound at the Houston Zoo without his gun.

“Unfortunately we live in a world where there are people who are intent to do harm unto others,” Walker said. “I don’t want to be punched in the face or stabbed with a knife. We are allowed to be secure in the knowledge that if somebody does attack me, I have the best tool available to defend myself. That tool is a gun.”

I’m not going to bother arguing with those statements, because this is one of those places where facts don’t really matter. I’m just going to say this: I grew up in New York City in the 70s and 80s. Charles Bronson, the Son of Sam, Bernie Goetz, Fort Apache The Bronx, The Warriors – this was the cultural background of my childhood. And yet, I don’t believe I knew anybody while I was growing up who had a gun. They just weren’t part of who we were. To this day, I just don’t understand the mindset expressed here by T. Edwin Walker. It has nothing to do with the relative level of safety and crime that we have here and now versus there and then. I just don’t get it. I’m not making any claims about right and wrong, and I have no argument with the interpretation of the law. As I said, I just don’t get it.

I fully expect there to be some backlash over this, and I support that. This is a political issue, and we didn’t get to this point without one side of that issue aggressively and successfully pursuing its agenda. The folks who don’t like it need to make a lot of noise, and figure out a way to translate that into some wins at the ballot box. But let’s all be honest about a couple of things. It was almost certainly the case that people brought guns into the zoo before last week – it’s been awhile since I was last there, but there were no bag checks or metal detectors at the gate, so anyone could have been packing heat in their purse or shoulder holster. Having a sign may deter some otherwise law-abiding folks, but it’s no deterrent to anyone who wanted to cause a problem. However bizarre it is to someone like me that someone like T. Edwin Walker can’t feel safe at the zoo unless he’s armed, the real problem is that as a country we’re up to our eyeballs in guns and that the sheer number of people killed every day by guns just doesn’t bother a lot of the rest of us, at least not enough to do anything about it. The debate about allowing guns at the Houston Zoo will pass. The bigger issue will be with us for a long time.

Supreme Court rules HERO must be repealed or voted on

Ugh.

PetitionsInvalid

The Texas Supreme Court ruled Friday that Houston City Council must repeal the city’s equal rights ordinance or place it on the November ballot.

The ruling comes three months after a state district judge ruled that opponents of Houston’s contentious non-discrimination ordinance passed last year failed to gather enough valid signatures to force a repeal referendum.

“We agree with the Relators that the City Secretary certified their petition and thereby invoked the City Council’s ministerial duty to reconsider and repeal the ordinance or submit it to popular vote,” the Texas Supreme Court wrote in a per curiam opinion. “The legislative power reserved to the people of Houston is not being honored.”

The city’s equal right ordinance bans discrimination based not just on sexual orientation and gender identity but also, as federal laws do, sex, race, color, ethnicity, national origin, age, religion, disability, pregnancy and genetic information, as well as family, marital or military status.

Houston City Council has 30 days to repeal the ordinance or place it on the November ballot.

[…]

A “disappointed” Parker said she thought the court had erred in its “eleventh hour ruling” and said her team was consulting with the city’s pro bono outside counsel on “any possible available legal actions.” She said the ordinance resembles measures passed by other major U.S. cities and many local companies.

“No matter the color of your skin, your age, gender, physical limitations, or sexual orientation, every Houstonian deserves the right to be treated equally,” Parker said. “To do otherwise, hurts Houston’s well-known image as a city that is tolerant, accepting, inclusive and embracing of its diversity. Our citizens fully support and understand this and I have never been afraid to take it to the voters. We will win!”

You can read the opinion here. To be clear, this was not an appeal of the trial court verdict that declared the number of petitions collected to be insufficient. It’s a ruling on a writ of mandamus filed last August to force the city to accept the City Secretary’s initial count, which only looked at registrations and didn’t consider whether petition pages were proper or whether any signatures had been forged. I personally think it’s perverse to ignore the findings of widespread forgery and general not following the rules, which to me just rewards bad actors, and if that’s what they were going to do they could have issued this ruling back in April and given the city and the HERO defenders more time to prepare for a campaign. As with the ReBuild Houston ruling, I’m having a hard time seeing this as anything but political in nature. It’s a screw job and there’s not much we can do about it.

As to what happens next, I don’t have any faith in the “possible available legal actions” the Mayor alluded to in her statement, so we’ll see what Council does on Wednesday. It’s theoretically possible that the decision could be made to repeal the ordinance and then try again next year, so as not to disrupt this year’s election and have to run a campaign on little time. That obviously requires electing a “good” Mayor, and it of course gives the haters another shot at collecting repeal petitions, this time with full knowledge of the boneheaded mistakes they made last year. I don’t know that I’d go that route, but it is an option.

Regardless of that decision, this will have an effect on the Mayor’s race, and thus on the rest of them. I’ve been asking about HERO in the At Large races where I’ve done interviews, but in the context of it being a settled issue. I’m going to have to put a note on most of them to indicate I did them before today’s ruling was made, as there’s no convenient fence-straddling position any more. Where one could have said something to the effect of “well, I didn’t support it then, but it’s the law now and I don’t see any reason to repeal it” before, now everyone needs to give a straight up keep-or-repeal answer. Five Mayoral candidates – Sylvester Turner, Steve Costello, Adrian Garcia, Chris Bell, and Marty McVey – are known HERO supporters. One – Ben Hall, of course – is not. One – Bill King – has been a fence-straddler. If the repeal referendum is on the ballot, how will you vote? If the decision is made to pass the question to the next Mayor and Council, what will you do? Everyone needs to ask that of all their candidates. I assure you, in the interviews I have left to do, I will be asking.

In the meantime, you should assume that this will be on the ballot, and you should do whatever you can to ensure it doesn’t get repealed. HOUEquality is your one stop shop for information and ways to help. Lane Lewis in his role as HCDP Chair has sent out emails vowing support for HERO. Find something you can do to help and do it. The Trib, Hair Balls, Think Progress, TPM, and Texas Leftist have more.

What now for road projects?

What do we do with road projects that were going to use ReBuild Houston funds now that the Supreme Court has ruled the 2010 referendum to have been illegal?

A necklace of neighborhood streets encircling Hudnell’s home is among the ReBuild projects, deemed beyond “economical repair” and originally scheduled for work late next fiscal year, which starts July 1, but recently pushed back several months.

Now, that delay could last much longer, and residents who have waited for their crumbling roads or poor drainage to be improved could simply be out of luck; a Supreme Court ruling two weeks ago found the ReBuild ballot measure voters narrowly approved in 2010 obscured the nature and cost of the drainage fee. The case is headed back to trial court where legal experts say a judge is likely to honor the unanimous Supreme Court decision.

If the city no longer can collect the drainage fee, ReBuild projects slated for mid- to late next year, like the one near South Acres, could be shelved. Next year alone, the city has budgeted more than $100 million in drainage fee spending, and the fee is projected to bring in $500 million over five years.

At a budget meeting last week, Mayor Annise Parker acknowledged the city’s Capital Improvement Plan could take a hit. Council members have pushed the administration for more clarity on the impact of the lawsuit as they consider the five-year plan, up for a vote Wednesday.

“The Supreme Court ruling, first of all, it’s ongoing litigation, it has no operational impact today,” Parker said. “But it would be the CIP. Probably a third to a half of the CIP would go away if we didn’t use the drainage fee. But there’s still other money in there.”

[…]

City Attorney Donna Edmundson disputed the notion that the city could not collect the drainage fee if the trial court finds the ballot language was misleading, pointing out that the lawsuit targets the charter amendment, not the ordinance City Council later passed to begin collecting the fee.

“The ruling by the Texas Supreme Court regarding the language for the Proposition 1 charter amendment has no bearing on whether the drainage ordinance continues,” Edmundson said. “The enabling ordinance adopted by City Council created the drainage utility and accompanying monthly fee that finances the streets and drainage program. For this reason, the ongoing legal dispute has no impact on the city budget for the coming fiscal year or the five-year Capital Improvement Program City Council will consider on Wednesday.”

South Texas College of Law professor Matthew Festa said that the charter amendment is struck down and the city continues to collect the drainage fee, it begs the question why they sent it to voters in the first place.

“It might be a technically correct legal argument,” Festa said. “But it might not be prudent to continue implementing a law where the basis on which the law is enacted is in grave doubt.”

See here and here for the background. As I said with the calls for doing over the election, I’d like to hear what the district court has to say before we do anything rash. Proceeding as if nothing has changed strikes me as unwise. I hate the idea of putting off needed maintenance, and I still think the Supreme Court ruling was politically motivated, but we are in uncharted waters here, and any further activity involving ReBuild funds risks putting the city in legal jeopardy. If there are projects that can be done without tapping into that funding source for now, then go ahead with it. Anything else, let’s get some clarity about what the Supreme Court ruling means in practical terms.

On regulating city lobbyists

Still a work in progress, it would seem.

BagOfMoney

Four years after Mayor Annise Parker’s administration tightened Houston’s lobbying rules and pledged to enforce them, not a single person or firm has been cited despite records showing that many lobbyists have failed to abide by the regulations.

A Houston Chronicle review of city records and interviews show that dozens of lobbyists do not properly record the clients they represent, do not keep their registrations up to date or do not report spending any money to influence city leaders.

In addition to registering their employers, lobbyists must disclose the spending they do to lobby city officials. Of the 142 lobbyists with active files in the City Secretary’s office, only 24 reported spending money on lobbying, and only 10 reported making more than three expenditures. Many activity reports also were filed late.

Lobbyists must update their registrations annually, but dozens fail to do so, leading to lapses ranging from a few days to several months. Some fought issues before the City Council, met with city officials or took council members to luncheons or Astros games during those lapses.

Houston lobbyists say any examination of influence peddling at City Hall inherently will omit the worst offenders who never disclose their clients and have no paperwork on file, and will name only those who try to follow the rules by maintaining active files. Many add that the city’s paper filing process is unwieldy, complicating compliance, and say city enforcement falls short.

Indeed, some advocates at City Hall do not always register because they do not view their efforts as lobbying, some because part of their work is public relations and others because they are attorneys representing clients and believe they qualify for a loophole in the law.

Parker said disdain for city lobbying rules is “not an insignificant problem,” but said enforcement must be complaint-driven.

“Obviously, we’d like better compliance, and I would encourage anyone who believes that someone is lobbying illegally to come forward,” Parker said.

“The whole goal of having a lobbyist registration is to know who someone’s working for, and, if they’re good lobbyists, you ought to know who they’re working for, they ought to be in there talking to you and advocating. It’s more of an issue of background information for council members.”

Craig McDonald, director of the Austin-based nonprofit Texans for Public Justice, took a different view, arguing that lobbying rules are drafted not for elected officials, but for the citizens they serve.

“It’s a basic right to know, almost like the ability to know who’s paying for elections,” McDonald said. “Without knowing who’s lobbying and who’s paying for it, it’s hard to find the conflicts – and that’s usually a conflict between an interest group and the general public.”

Houston’s lobbying rules have a simple goal: to make those who seek to influence city actions disclose their clients and the money they spend on their behalf. Despite records and interviews showing problems in both areas, City Attorney Donna Edmundson said her office does not have the resources to do proactive enforcement. Edmundson acknowledged some lobbyists complain about competitors, but said she has never received a written complaint that would spur her to investigate.

“The criminal standard is ‘intentionally or knowingly violates.’ The bottom line is, it’s just a Class C misdemeanor,” Edmundson said, noting the $500 fine such a violation would carry. “If someone files a written complaint, that’s fine. I don’t know of anyone in the city that would sit here and look at the City Secretary’s list.”

That lack of urgency on lobbying rules is common, McDonald said, noting that even the Texas Ethics Commission does no proactive enforcement. However, he said even minor violations of state ethics rules bring citations and fines because the bar to levy penalties is lower.

I generally agree with PDiddie that this is unacceptable. It’s not clear to me how much fault goes to the wording of the ordinance, how much goes to the lobbyists, and how much goes to the city for being so lax about it all. Tighter ethical rules are something we should all believe in, but where we go from here to get to what that new ordinance promised is a question we – more appropriately, the Mayoral candidates – can discuss. Towards that end, as I see it, there are three reasonable responses for a candidate to make to this:

1. Though there is always room for improvement, the system is basically doing what it was designed to do. It was never intended to be proactive, as the City Attorney’s office doesn’t have the resources to pursue investigations on its own. Adding sufficient resources to be proactive would be expensive and would be unlikely to provide much value. Clean up the language as needed, remind all the stakeholders what the rules are, remind everyone else that they are empowered to report violations, and we’re good to go.

2. The system is not working as intended, and the “do nothing until someone files a report” approach is exactly backwards. The city should be aggressively enforcing the ethics ordinances that it made a big show of tightening four years ago, and if that means spending more money on resources for the City Attorney to pursue these cases, even if there’s not much evidence now that there’s all that much to enforce, then so be it.

3. If the city can’t enforce its ordinances, then those ordinances should be changed or removed. Figure out how much we actually want to spend on enforcing these lobbyist rules, figure out where the most bang for the buck is, then rewrite the ordinance to reflect that and enforce them like any other law.

Which response do I prefer? I’m going to weasel out and say that I’m not sure, but I’m open to persuasion. What I would really like – say it with me now – is to know what approach the Mayoral candidates prefer. This task will fall to one of them, after all, and there is a budget reality at play here. How would they handle it, and what specifically would they do differently? We need to know.

Ethics Commission rejects Bell’s complaint

No go.

Chris Bell

Chris Bell

The Houston Ethics Commission has ruled against mayoral candidate Chris Bell’s complaint that City Hall was letting Rep. Sylvester Turner start the race with a $900,000 head start in fundraising.

[…]

Bell argues that Turner’s legislative account should not be able to transfer more than $10,000 to his mayoral account, the most that any third-party group can donate to a candidate. The Parker administration and Turner have said he should be allowed to transfer each individual donation that falls under the maximum caps set out by the city’s fundraising laws. He opened his mayoral account late last month and starts with about $900,000, according to his campaign.

Bell was hoping that the Ethics Commission would side with him and determine that Turner is violating city fundraising laws.

“They have no jurisdiction because there was no impropriety,” said Janice Evans, a Parker spokeswoman.

See here for the background. Filing that federal lawsuit he’s been talking about would be Bell’s next step, if he chooses to pursue this further. I’m not a lawyer, but I don’t think I’d put any money on his chances if Bell were to follow that route.

Two city race updates

Item one: We have another candidate for Comptroller.

Jew Don Boney

Jew Don Boney

Jew Don Boney, who sat on City Council for three terms in the 1990′s, will run for City Controller, he told the Chronicle Wednesday.

Boney joins Houston Community College trustee Carroll Robinson and 2013 candidate Bill Frazer in the race for the city’s top financial officer. Two other candidates, current Deputy Controller Chris Brown and METRO board member Dwight Jefferson, are seriously considering joining the race, but have not yet done so.

Currently an administrator at Texas Southern University, Boney served as mayor pro-tem under Mayor Lee Brown and represented District D, a predominantly African-American district. Boney lost to Robinson in a testy election for the seat on HCC’s board in 2011.

Here’s the interview I did with Boney for that 2011 HCC Trustee race. He was my Council member for about two years when I lived in Montrose. I liked him them and am glad to see him get in this race. This is the first time I’ve seen the name Chris Brown listed as a possible candidate. I’d heard his name mentioned before but had confused him with former Council Member and Mayoral candidate Peter Brown. Let there be a big field for this race. It would be nice to have a spirited debate about the Controller’s office and duties.

Item two: Chris Bell fires another shot in his campaign finance battle.

Mayoral candidate Chris Bell filed a formal complaint to the Houston Ethics Commission on Wednesday charging that former City Attorney David Feldman overstepped his authority when he granted permission to Rep. Sylvester Turner to raise money for his mayoral bid when other candidates couldn’t.

In a six-page complaint, Bell’s attorney, Geoffrey Berg, argued that the City Attorney is only allowed to advise city officeholders, which Turner is not. That was a key point of contention in court last month: Feldman replied that since he advised the Houston Ethics Commission — a board that Berg said should interpret campaign finance law for mayoral candidates — he effectively could advise Turner directly.

“I received a simple email from Sylvester Turner,” Feldman said as he defended himself in court last month. “I responded with an answer. We do serve our citizens, whether they happen to be state representatives or not.”

[…]

In Wednesday’s complaint, Berg reiterates much of the case he has made in court for months, arguing that the legislative history of the city’s campaign finance law makes clear that Turner’s strategy violates it. Berg also responds to the City’s argument, central to its case, that a January federal court decision that declared Houston’s blackout period unconstitutional renders Bell’s grievance obsolete.

“Mr. Feldman is wrong. The contribution cap reflected in the Ordinance is in no way dependent on the constitutionality of the blackout period,” Berg wrote.

See here, here, and here for the background. Another lawsuit from Bell on this issue remains a possibility. I don’t have anything else to add to this.

Mayor Parker testifies at HERO repeal petition trial

Monday was Mayor Parker’s turn to take the stand at the trial over the validity of the HERO repeal petitions. You’d think this would be a momentous occasion of high drama, but since this whole thing is about technicalities and not about the merits of the ordinance, it was a lot less exciting than it sounds.

Mayor Annise Parker

Mayor Annise Parker

Parker, for her part, labeled her testimony “tedious” and remarked “those poor jurors” to an aide during a morning break.

“They’ve made a lot of public allegations about what I did or did not do, but they really didn’t ask me about what my job was and what I actually did do, which was surprising,” Parker said. “They spent a lot of time asking me to second-guess the work of the legal department. As I had to reiterate, I wasn’t down in the weeds, that wasn’t my role.”

On some level, tedium was expected. Jurors are not examining the merits of the ordinance, which City Council passed last May, banning discrimination among businesses that serve the public, private employers, housing, city employment and city contracting but exempting religious institutions.

The jury instead is tasked with parsing the thousands of petition pages opponents submitted last July. The plaintiffs – conservative pastors and activists – say they verified 31,000 of the signatures, but city attorneys now say only 3,905 are valid, citing alleged fraud, perjury and additional errors they did not find when they initially rejected the petition.

Parker’s critics had questioned a meeting that took place in her office the same day the city announced opponents failed to gather the required 17,269 signatures. At that meeting, according to a deposition of City Secretary Anna Russell, a video of which was played in court Monday, then-City Attorney David Feldman asked Russell if he could add his own analysis to her page-long memo that originally found enough valid individual signatures to qualify the petition. Citing errors that disqualified entire pages, Feldman’s added paragraphs ultimately doomed the petition.

[…]

The plaintiffs used Russell as their final witness. In her deposition, Russell said she believed she had completed her duty when she verified more signatures than the group needed to qualify for the ballot. Taylor closed with Russell’s answer to his question about whether she was proud of her office’s work in light of the city’s finding that the petition had failed and Parker and others had criticized the signature gatherers’ work as fraudulent and sloppy.

“I feel like we did our job, and I’m proud of it,” Russell said.

But attorneys for Russell and the city chose clips from her deposition that painted a more coordinated portrait of the city’s effort, with Russell saying she was aware that the City Attorney’s office was conducting its own review. She also said that while it was her responsibility to look at whether those who signed the petition were registered Houston voters, certifying the petition was not within her duties.

See here and here for previous updates. The Anna Russell testimony is the more interesting action, since the plaintiffs’ case largely rests on the assertion that only her review of the signatures, which involves checking to see who is and who isn’t a Houston voter, is relevant. I suspect the excitement level will ratchet up when the city puts on its defense, at which time it will present its evidence about fraud and forgery. In the meantime, David Feldman will take the stand. That ought to be worth watching even if the subject matter is dry. Project Q has more.

Feldman’s parting memo

Outgoing City Attorney David Feldman shares his thoughts on the state of the city’s campaign finance rules as he makes his exit.

Chris Bell

Chris Bell

City Hall began its attempt to use a federal court ruling declaring its own election rule unconstitutional to its advantage it in a second, unrelated suit in a letter this week.

In the below memo to City Council on Thursday, City Attorney David Feldman argues that the U.S. District Judge’s ruling last week that tossed the city’s blackout period had a broad impact: It invalidated the concerns of Chris Bell, a mayoral candidate suing the city for not strictly enough enforcing campaign finance rules.

In the four-paragraph letter, Feldman writes that case law is building that governments cannot outlaw campaign spending merely for its own sake. And Feldman says that without the previous restriction on when candidates can raise money, there is no reasonable challenge to be made by Bell as to why Rep. Sylvester Turner, Bell’s opponent, can’t spend it.

Turner is not merely attempting to spend money, however, but transfer it. He eventually hopes to transfer almost all of the $1 million in his legislative account to a to-be-created mayoral account. Bell believes that Turner’s legislative account should be able to only donate $10,000, the maximum that any political action committee can contribute in a city election.

See here and here for the background, and click that Houston Politics link to see the memo. Not a whole lot to add here, though I should mention that while I believe Turner should be able to transfer his funds as he sees fit (Bell will likely file suit over that), that outcome would be a raw deal for Chris Bell. I’m sure he would have been raising money last year if he could have, and the late-breaking injunction against the blackout rule not only doesn’t give him much time back to catch up, there are now more candidates out there that may be competing with him for the money. But that’s the way it goes, and if Bell manages to get a favorable ruling in his lawsuit, it’s Turner that will be in a world of hurt. You know what they say about the fairness of life.

First HERO repeal petition hearing today

Have I mentioned that this is a really busy month for big ticket courtroom action?

PetitionsInvalid

Conservative opponents suing the city over its equal rights ordinance are pushing, along with several City Council members, for the upcoming case to go before a jury, a move the administration said is unprecedented and would defy election law.

After a City Council meeting Wednesday, members Michael Kubosh, Oliver Pennington and C.O. Bradford, who voted in favor of the ordinance last spring, all argued the case should go to a jury trial rather than before a judge as originally scheduled. A state district judge will hold a hearing Friday on the request for a jury trial and the city’s response asking for a such a trial to be barred.

“The city may be deploying a demonstrative legal strategy,” Bradford said. “But I believe it will be a loser in the public opinion arena. We simply should not be trying to remove the people from the process.”

Just as a reminder, this is all about whether or not The People get to vote on the civil rights of some other people. We simply should not be conceding that point.

“There never has been a jury trial in an election contest in the state of Texas,” [former City Attorney David] Feldman said.

Plaintiff Jared Woodfill disputed that claim, saying the case is not an “election contest” because it does not pertain to the results of an election.

“What they’re really saying is they don’t think the people are smart enough to make that decision,” Woodfill said. “Whether it’s been having the voters vote or now allowing a jury to decide, (Parker) has been consistent on that.”

Election law attorney Doug Ray, who had not seen the court filings, said the case sounded like a “ballot access” issue – whether or not a candidate or a measure qualifies for a ballot. In those cases, granting a jury trial is rare, he said.

“It’s not clear-cut,” Ray said as to whether or not the plaintiffs are entitled to a jury trail. “As they say, the devil is always in the details.”

Feldman agreed that the case is a “ballot acccess” issue, saying that both “ballot access” and “election contest” cases fall under the state’s election code. Under the election code, only a district judge, not a jury, has the power to rule in those cases, he said.

Woodfill, Kubosh and Bradford all said the city would be wise to allow a jury trial in light of the recent controversy over the city’s subpoenaing of sermons and other materials belonging to certain pastors who helped organize the petition.

Funny how the “wise” thing to do at every stage of this process has been to give the haters exactly what they want. I’m not an attorney and I don’t know anything about the fine legal points at issue here. If Woodfill et al have a persuasive case, they’ll get what they’re asking for on the merits. What say we stick with that for now? The case is set to begin on January 19. I can’t wait.

UPDATE: I was not aware of this:

Attorneys for the city last month filed a motion requesting a bench trial, but the plaintiffs say they have a “constitutional right to a trial by jury.” That motion and others are scheduled to be heard today, but we’ll have to wait until the trial, scheduled for January 19, for the truly good stuff, which includes allegations of forged signatures.

So far, most of the City’s challenges to the petitions’ validity has centered around technical — and pretty boring — matters like whether a page included a blank space for a circulators’ signature. What’s really intriguing, though, is the City’s more recent contention that many names were forged, and that Woodfill “is no stranger” to fraudulent petitions.

In motions filed last November, attorneys for the City cited a suit where Woodfill — then the chairman of the Harris County Republican Party — accepted “facially valid” election petitions that “turned out to involve ‘forgery, fraud, or other non-accidental defects discoverable only by independent investigation.”

No one has argued that Woodfill knew the signatures in that election were invalid at the time he accepted them, but attorneys for the City point out that the court didn’t buy Woodfill’s argument that “the truthfulness of a circulator’s affidavit is strictly a criminal matter.”

[…]

These allegations were enough for for plaintiff Steve “Birth Control Pills Make Women Less Attractive to Men” Hotze, to drop out of the suit — something the City’s attorneys say is evidence that “misconduct and non-accidental defects are so pervasive” throughout the petitions. Listen, it’s a bad sign when your co-plaintiff is Steve Hotze. But it’s a really bad sign when Hotze drops out from fear that he may not have a legally sound argument.

My, my, my. Now I really can’t wait to see what happens at trial.

Donna Edmunson

From the inbox:

Donna Edmunson

Mayor Annise Parker has selected Donna Edmundson to be the new city attorney. Upon confirmation by City Council, Edmundson will become the first woman to hold the position. She has nearly 30 years of experience with the City Legal Department.

“With just a year left in my term and a wealth of internal talent, I did not see a need to consider an outside candidate,” said Mayor Parker. “Multiple employees were interviewed from within the department, and I concluded Donna is the best choice. She has deep and broad experience in matters of law and management. I particularly like that her recent experience has been in the area of neighborhood protection, which is one of my top priorities.”

Edmundson has been practicing law in the City Legal Department since 1986. Since 2008, she has served as Chief of the department’s Neighborhood Services Section. Her current responsibilities include managing 25 attorneys and support staff as well as providing legal advice regarding neighborhood issues to various city departments. She has pursued legal action against the owners of dangerous buildings and works closely with the Houston Police Department (HPD) on gang, drug and vice related matters. Her work targeting a north side gang known as the Hollywood Click resulted in a 40 percent reduction in criminal activity in a 48 square mile area on Houston’s north side. She was also intimately involved in the settlement that ended long-standing litigation between 16 area topless clubs and the City. The agreement set new regulations for operation of the clubs and provided funding for creation of a human trafficking unit within HPD.

Prior to being named to the management position of section chief, Edmundson served as a Senior Assistant City Attorney. She has a law degree from South Texas College of Law and a B.A. from Sam Houston State University.

Edmundson will replace David Feldman, who is resigning effective January 16, 2015, to go into practice with his son.

City Council is expected to consider Edmundson’s confirmation in two weeks.

The Chron story has some more details.

Colleagues describe the soft-spoken attorney – a fourth-generation Houstonian, Westbury High School graduate and the youngest, with her twin brother, of six siblings – as tireless, firm and passionate about her work.

Wanda Adams, an HISD trustee and former council member who worked with Edmundson on many neighborhood nuisances, said she has “a community heart.”

“She approaches her work with passion, and she’s very honest and transparent,” Adams said. “Donna would go out and look at the issue. She didn’t sit at the desk. I always used to talk about the landlords and dilapidated apartments. She would actually go out there and look and see and talk to the tenants.”

[…]

Parker lauded Edmundson’s work to secure a 10-year court order against a north Houston gang known as the Hollywood Click. The injunction, signed in 2011, severely limits gang members’ activities in a 48-square-mile area and, officials said, has cut crime there 40 percent. Edmundson also worked on a novel settlement with 16 area topless clubs that legalized lap dances in exchange for the clubs funding a new police vice unit and closing private rooms.

“The things that we do and we impact, you can directly see,” Edmundson said. “We can get a call about something that’s a dangerous building and get the owner to take it down. You have locations where there’s criminal activity. We can go in and sue them or get some sort of injunctive relief to bring that activity to a close.”

Neighborhood leaders praised Edmundson for her responsiveness. Glenbrook Valley residents had accumulated a backlog of alleged deed restriction violations the city had ignored when Edmundson took over theNeighborhood Services Division several years ago, civic leader Ann Collum said. Edmundson came to the neighborhood and reviewed the entire file.

“She’s very caring and very concerned,” Collum said. “There was a completely open communication line if we had a question or didn’t understand something. She will be an asset to the whole city.”

Councilman Mike Laster served in the city attorney’s office with Edmundson in the 1990s and has worked with her on issues in his district since joining the council in 2012.

“As a colleague in the city attorney’s office, she was a great mentor and a gentle teacher to young attorneys and other colleagues,” he said. “As a person who worked with a council member, she brought that same sort of intelligence and good humor to the table. She has the ability to be strong and firm and definite when that’s needed, and she also, more importantly, has an open mind.”

All very good to hear. Gotta say, I’d have thought we’d have had a female City Attorney by now, but apparently not. I wish Ms. Edmunson all the best. She’s coming in at a critical time, with the HERO repeal petition lawsuit about to get underway. Good luck with the new job, and please be immediately successful. Texas Leftist has more.

Feldman resigns

Mayor Parker loses a key member of her team going into her final year as Mayor.

David Feldman

City Attorney David Feldman on Friday announced that he plans to resign next month, citing, among other reasons, that he could better defend the city’s embattled equal rights ordinance as a key witness than as a lawyer in an upcoming case.

Feldman has played a crucial and at times controversial role in Mayor Annise Parker’s administration, alternately acting as chief negotiator, attack dog, policy wonk and spokesman. He said Friday that the main reason for his departure was a desire to work at a law firm with his son, also an attorney. Feldman spent 33 years in private practice, running his own firm after serving as a partner at Vinson & Elkins, before Parker appointed him in May 2010.

“The primary driving force is the desire to go back into private practice and frankly to go back into private practice at a time when I think there are people out there who I used to represent who still remember me,” Feldman said. “And my son has been after me continuously. There’s a draw there, there’s an allure: ‘Feldman and Feldman.’ ”

Feldman said he long had planned to leave by early 2015 but acknowledged the precise timing of his resignation was driven by the lawsuit against Parker’s signature equal rights ordinance, set for trial Jan. 19.

[…]

The Louisiana native and Army veteran appeared on the verge of leaving last January, when Parker gave him a hefty 43 percent raise, to $350,000. The raise made Feldman the second highest-paid municipal employee in the state, according to the City Controller’s office, which questioned the decision.

Feldman then called his work with the city “the most challenging and interesting chapter” of his career, and argued that his experience – many city attorneys are young lawyers on their way up; Feldman is 65 – had allowed him to shift the focus of the job from defensive advice to proactive solutions.

This fall, for instance, Feldman spearheaded the effort to ban synthetic drugs in Houston. He also has touted his effort to force developers who illegally remove trees on public land to pay damages to the city.

“I’d like to think I’ve set the tone for city attorneys in the future to have a more expansive role,” Feldman said. “They’re not just caretakers, and they’re not just super­visors of other lawyers, but they have the opportunity to help shape where the city is going.”

This approach made Feldman a piñata long before the equal rights fight. There was his role in ending a law firm’s monopoly on collecting delinquent city property taxes, an ordinance he drafted prohibiting wage theft that was unpopular with business groups, and a much-criticized strip club settlement that saw 16 clubs get clearance to allow fully topless dancing in exchange for funding a police unit to combat human trafficking.

It was indeed Feldman’s style to swing for the fences, which was not how it was with most City Attorneys before him. And like baseball players who take that approach, sometimes he hit it out of the park, and sometimes he swung and missed. Overall I’d say he had more wins than losses, though I’m sure those who didn’t like him would argue with me. One can only imagine what the last five years would have been like with someone who had a different philosophy in the City Attorney’s office. Be that as it may, to a large degree Feldman’s tenure as City Secretary will be judged by the result of the HERO repeal lawsuit, as his actions during the process are a big part of the reason why we are where we are now. The implications and repercussions of that lawsuit could wind up being far bigger than just the Houston ordinance, as Texas Leftist points out. The stakes are really high, so we’d all better hope that Feldman’s work on this will hold up. Texpatriate, PDiddie, and Hair Balls have more.

HERO repeal lawsuit moved to federal court

And the bad guys are very unhappy about it.

PetitionsInvalid

Conservative activists seeking to repeal Houston’s equal rights ordinance accused the city of stalling the issue Wednesday after city lawyers moved the opponents’ lawsuit over rejected ballot petitions from state to federal court.

Opponents blasted the move, calling it a delay tactic aimed at keeping the issue off the November ballot. City officials called it a routine move invited by the plaintiffs’ decision to cite federal law in their suit.

[…]

Plaintiff Jared Woodfill, a conservative activist, said the city’s move was less about federal rights and more about putting off a ruling. Woodfill and opponents sought an injunction in state court Tuesday night, asking Visiting Judge John Coselli to suspend enforcement of the ordinance, effectively triggering the referendum process. Parker, however, already has said the city will not enforce the ordinance until there is a legal ruling.

Coselli did not rule on the injunction request Tuesday and by Wednesday afternoon the city had filed its notice of removal.

“They’re doing everything they can to keep the people and the courts from ruling on this,” Woodfill said.

Aw, poor baby. Here’s the original story on the lawsuit, which as noted was filed late Tuesday.

The lawsuit asks a state district judge to declare that City Secretary Anna Russell met her legal duty by verifying a sufficient number of signatures to force a vote, only to have City Attorney David Feldman illegally insert himself into verifying the petition, invalidating more than half of the petition’s 5,200 pages for failing to satisfy legal requirements in the city charter. That left opponents roughly 2,000 names short of the 17,269-signature threshold needed to force a referendum.

In a memo to Mayor Annise Parker and the City Council, Russell said she had found 17,846 valid signatures before Feldman reviewed the pages, and attributed the lower count to her review of his office’s work. At an injunction hearing Tuesday night, plaintiffs argued Russell’s initial count was the important one by law and should have triggered a referendum. City attorneys disagreed, saying Russell ultimately found there were not enough signatures.

“If he (Feldman) felt there were underlying problems with the petition then he, like us, has the right to file a lawsuit if he doesn’t agree with what the city secretary did,” said conservative activist Jared Woodfill, one of the four plaintiffs. “Going in before she’s ever made the decision and influencing her is inappropriate, it’s illegal and we believe the court will agree with us and that folks will have their voices heard in November on this issue.”

[…]

Feldman strongly disputed the idea that his involvement crossed ethical or legal lines, saying he has a specific duty under city ordinance to interpret the law and give legal advice.

“There’s nothing that would preclude me from giving legal advice to the city secretary,” Feldman said. “In fact, that’s what our ordinances would expect me to do: Give advice to her on an issue which is really a legal issue. The question of whether or not those pages are valid because of the issue of meeting or not meeting the requirements of the charter is a legal issue.”

As noted yesterday, you can see a copy of the lawsuit here, but those paragraphs above basically capture it. Woodfill and his playmates claim that only Anna Russell can determine the number of valid signatures. I thought their argument was kinda thin, but I am as always Not A Lawyer, so what do I know. As far as the complaints about delays go – remember, August 18 is looming as the last day for any measure to be put on the ballot – they are cordially invited to cry me a river.

One more thing, from the first story:

During her weekly press conference after Wednesday’s City Council meeting, Parker referred to a training video that shows Dave Welch, of the Houston Area Pastor Council and a leading opponent of the ordinance, explaining the rules signature gatherers needed to follow. With a power point presentation behind him, Welch tells the audience the unique repeal referendum process “makes it more challenging for us.”

Signature gatherers must be registered city voters, Welch said. If they are not, the entire page gets thrown out.

“Let me repeat that so everybody really understands that,” Welch said.

Parker said she had not seen the video, but that her staff had been “enjoying” it.

“So, it’s kind of amusing if, in fact, his own language is used against him in court,” Parker said.

Here’s the video in question. Skip ahead to 6:30 to hear the bit Mayor Parker is referring to. I don’t know that this makes any difference legally, but it’s pretty funny anyway.

Finally, on a side note, the Forward Times hosted a public forum recently to discuss the HERO and its effects. Supporters and opponents were invited to come and speak, but at the last minute the opposing speakers dropped out. TaShon Thomas is not impressed.

Puss in Boots tells the story of a cat that uses trickery and deceit to gain wealth, power, and the hand of a princess for his lowly master. Much like the mischievous cat, the opponents of the ordinance used every manner of trickery and deceit to get their point across and try to sell their side to the citizens of Houston. But when given the opportunity to actually talk about the ordinance in a sensible approach, none of the leaders of the petition drive decided to show up.

I have always been one who is open to hearing opposition and trying to understand where they are coming from, but it is impossible for me to do that if they do not show up when it is important. The mayor’s announcement should have not deterred the petition leaders from attending the forum; it should have been a rallying cry.

If you truly care about bettering the city of Houston and believe the ordinance would lead to its downfall, then you should use whatever avenue is given to you to get your point across. Do not just say you are going to attend and back out at the last moment as though you are cowering in defeat. Especially now since the window for the repeal to be placed on the ballot is approaching fast.

I hope this serves as a cautioning for anyone, especially elected officials or anyone trying to bring something to our community, who make commitments and fail to live up to his or her promises.

How can we support or trust you if you can’t even face the people you are trying to persuade to join your cause and go your way? In other words, do not let your mouth write a check that your behind can’t cash!

Amen to that.

Remember Ray Jones

PetitionsInvalid

So now that the HERO-haters’ petitions have been rejected by the city for not having enough valid signatures after all of the petition pages that were not compliant with the requirements of the city charter were thrown out, the story shifts to the courthouse. We don’t know exactly what the antis are going to claim but I think it’s fair to assume that they will assert that they city was too broad in its rejections and that at least some of the pages that were tossed should have been accepted. The rejections were for fairly technical reasons – the circulator didn’t sign his or her name, or there was a signature but no printed name, or the circulator was not a registered voter in Houston, and so on. There are many arguments one could make to get more signatures accepted, and if the haters’ legal counsel in their litigation is less incompetent than their counsel during the petition signing process was, they will make as many of them as they can and hope enough of them stick.

I’m not a lawyer and can’t really say what might or might not work, but I do know that the city has been down a road similar to this before, involving someone whose attempt to make it onto a ballot was rejected for narrow technical reasons and who didn’t settle for that answer. I’m thinking about Ray Jones, who was a candidate for District C in 2005, then tried to join the field of what ended up as nine candidates in the special election for At Large #3 in 2007, which was eventually won by Melissa Noriega. Jones, as is often the case with candidates, turned in his ballot application just before the deadline. Unfortunately for him, there was a problem with it, and the city rejected it, along with those of two other candidates. Here’s a report from the Chron about what the problem was.

Under the Texas Public Information Act, I got copies of rejected applications submitted by Ray Jones Jr., Greg Locke and Darryn Call. The city also released the form filed by Roy Morales, who is on the ballot.

Here’s what I found out about the four applications. You can download them here [PDF] and read along:

CALL: He didn’t complete the oath section. Leaving this blank is what city attorneys consider a “fatal” error. It’s the section in which candidates affirmatively swear that they’re submitting “true and correct” applications, and that they comply with all the requirements.

LOCKE: He got the oath part right, but he didn’t fill in his voter-registration number. This, too, is fatal because Article V of the City Charter requires that candidates be “qualified” voters.

[…]

JONES: He also didn’t complete the oath.

Jones got a call from the legal department about the error a few minutes before the deadline, but it was too late for him to submit a new form. He believes the city unfairly excludes candidates. He wrote [PDF] City Secretary Anna Russell and City Attorney Arturo Michel about it, too.

If you look at the forms in question, you see that the “oath” section is basically the part that you fill out and sign in order to get the document notarized. There’s blanks for your name, your county, and the office you’re seeking, then your signature, which is the one part everyone got right. I suppose it’s possible that a novice candidate might miss these places on the form, but you’d think a notary public would know to tell them to fill them in.

In any event, this is by any reasonable measure fairly small potatoes. The document is signed notarized, after all, and the missing information can be found or inferred from other boxes. One could certainly argue that the city might cut them some slack and err on the side of inclusiveness. The city for its part did try to contact Jones and get him to fix his mistake, but they weren’t able to reach him in time for him to do so – remember, he turned in his application on deadline day. After some back and forth in the press and an allegation that the city employee that received his document did not give him correct information about its accuracy, Ray Jones filed suit with the 14th Circuit Court of Appeals to get on the ballot. He got some sympathy from the Chron, but the city held fast. In their response, the city pointed out that his application was “defective on its face”, and they cited precedent in their favor:

The Court of Appeals of Waco held that an application that left blank the spaces of an oath/verification identical to the Jones application was defective and incomplete. The application failed to satisfy the “statutory requirements governing a candidate’s application.” In re Gibson, 960 S.W. 2d 418, 420-421 (Tex. App. – Waco 1998) (original proceeding); contra, Yapor v. McConnell, 597 S.W. 2d 555 (Tex. App. – El Paso 1980) (original proceeding). The court found that an official has the duty to review an application within five days and make a determination as to whether the application complies with all statutory requirements. If the application does not comply with the requirements of the Election Code, the application must be rejected. Tex. Elec. Code § 141.032 (e).

In Gibson, the candidate made the exact same errors as Jones by failing to fill in the blanks of the oath which is required by the Election Code . Tex. Elec. Code § 141.031(4)(K). Like Jones, the candidate in Gibson attempted to blame his omissions on the official that received his application or on the notary. In rejecting Gibson’s argument, the court held that “the completion of a candidate’s application rests primarily on the shoulders of the candidate.” Id. at 421. Statutory requirements are mandatory and the candidate must “ensure that the application strictly complies with state law.” Id. at 421.

The city ultimately prevailed, and an appeal to the Supreme Court also failed. Now again, I’m not a lawyer and I can’t say how the haters’ litigation will go. I don’t know if this case would be relevant to what they will put forth. My job is to remember stuff like this and bring it up at appropriate moments. The point I’m making is that just because these prohibitions may seem nitpicky doesn’t mean you’ll get any relief from a judge. Maybe there’s another precedent out there that would favor the petitioners, I don’t know. We’ll know soon enough how they plan to attack this. In the meantime, I say remember Ray Jones and the example he gave us. The Observer has more.

UPDATE: And the lawsuit has been filed. You can see a copy of it here, but the TL;dr version is that they claim Anna Russell’s is the One True Count, and none of the work done to invalidate individual pages means anything. I guess that’s one way of approaching this. The judge could rule as early as this morning.

HERO repeal effort falls short

Too bad, so sad (not really).

PetitionsInvalid

Opponents of Houston’s new non-discrimination ordinance did not get enough valid signatures to force a November repeal referendum, Mayor Annise Parker and City Attorney David Feldman announced Monday.

“With respect to the referendum petition filed to repeal the ‘HERO’ ordinance, there are simply too many documents with irregularities and problems to overlook,” Feldman said. “The petition is simply invalid. There is no other conclusion.”

The council approved the ordinance on an 11-6 vote in May. Opponents who took issue with the protections extended to gay and transgender people under the ordinance promised to send the issue to the voters. On July 3, they claimed to have delivered more than 50,000 signatures to the city secretary’s office.

Opponents needed a minimum of 17,269 valid signatures – 10 percent of the ballots cast in the last mayoral election – to put a referendum on the November ballot. Feldman said some of the petition gatherers did not satisfy the requirements set out for such petitions in the city charter, such as by not being registered Houston voters or by not signing the petition themselves. If such requirements were not met, he said, all the signatures the circulator gathered were invalid.

Less than half of the more than 5,000 pages opponents submitted were valid, Feldman said, leaving the final valid tally at 15,249 signatures.

The bad guys may have claimed to have turned in over 50,000 signatures, but as noted yesterday, the number they subsequently claimed to have validated on their own was much lower than that. You can see the memo from the City Secretary and City Attorney’s offices here, with the latter spelling out the reasons why each individual page was invalidated and how many signatures were on them.

Needless to say, there will be litigation to force this onto the ballot. Mayor Parker has acknowledged the inevitability of this before and does so again in her press release. We are rapidly approaching the deadline for any referendum or measure to be put on a ballot – according to the Secretary of State, that deadline is Monday, August 18, 78 days before Election Day. I have no idea what the chances are of getting a definitive answer by then. I do find it amusing that one of the head haters, Dave Welch of the Houston Area Pastors Council, is claiming that they have “already assembled the top elections law attorneys in the state to review this” because by all the accounts I’ve heard the petition effort was incredibly sloppy. I mean, go back and look at those memos – you’ve got page after page of petitions being invalidated for not being signed by the circulator, or having only an illegible signature with no corresponding printed name by a circulator. How amateur night is that? They really needed to have those Top Men working on this at the beginning, not just now.

Anyway. You can still see the petitions themselves by searching Scribd for “hero petition” if you want to cross-check the City Attorney’s work. This isn’t over by a long shot – it’s certainly possible that a court could decide that the city was being too nitpicky in its review, or that some of the requirements in the charter are unconstitutional, or just that we should cut these poor bastards some slack, I don’t know. We’ll know more when we see the lawsuit that they file. KTRK, Equality Texas, Equal Rights Houston, Lone Star Q, Texas Leftist, and BOR have more.

UPDATE: More from ThinkProgress. And no, CultureMap, it’s not a bad thing that voters won’t be “allowed” to vote on whether or not to let discrimination continue to be legal.

Audit letters

There’s a thing called audit letters that I hadn’t known existed. We’ve got them for Houston, but we had not been making them public even though other cities do as a matter of course.

City Controller Ronald Green

City Controller Ronald Green

Houston officials have blocked the release of letters detailing weaknesses in the city’s financial accounting even though other large Texas cities routinely share such letters as a matter of transparency.

“What are they trying to hide, if anything?” asked Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. “The financial business of a government entity is everybody’s business. It’s our money, and it’s our government.”

State law requires public agencies to hire an external auditor to review finances each year, ensuring that governments accurately portray their fiscal health in reports to leaders and the public. When that audit is complete, the full report is accompanied by a management letter that notes any apparent problems with accounting procedures uncovered while testing the accuracy of financial statements.

[…]

Though [City Controller Ronald] Green previously had said he supported the release of the letters, he has deferred to the city attorney’s office, which sought an opinion from the Texas Attorney General’s Office on whether the city was required to release them.

Green last week did not respond to questions emailed to his office seeking further explanation of his stance, instead releasing a two-sentence statement. “Heretofore, Management Letters have not been disclosed based on direction from the City Attorney and Texas Attorney General. The City of Houston will continue, until advised otherwise.”

The attorney general’s office earlier this month issued an opinion saying the city did not have to release the audit letters.

“This is a discretionary section that city may elect to raise. It is not required,” wrote attorney general spokesman Jerry Strickland. “If other cities choose not to raise this exception and would rather release similar information, they have that option.”

[…]

Last October, City Controller Green refused to release the letters from the last 10 years when frequent city critic Bob Lemer and, later the Chronicle, requested them under the Texas Public Information Act.

At the time, Green said he believed the records should be public but deferred to the decision of the city attorney’s office and Texas attorney general. “I do not practice law here,” he said. “When it comes to Bob Lemer, he’s still looking for ways to gain legal standing over the city on Proposition 2.”

Lemer, a retired partner at Ernst & Young, said the refusal to release the letters bolsters his arguments that the city is hiding the extent of its financial troubles.

“They will not let the public know what a horrible mess the entire accounting system is,” he said.

In its letter seeking an opinion from the attorney general, the city attorney’s office cited an exception to the Texas Public Information Act allowing cities to decide whether to release “audit working papers,” generally seen as communications with city employees that auditors use to prepare their reports or incomplete drafts of their reports.

Lemer may well be a crank, but that doesn’t mean he’s wrong. Whether he is or he isn’t, withholding this information does give him an air of authenticity, and a lot more grist for his grievance mill. A followup story in the Chron quoted several Council members who were also mystified by this and who called for the letters to be released. I don’t know what purpose was being served here, but in the end Mayor Parker stepped in and made the right call.

Amid questions from City Council members about the propriety of keeping them secret, the mayor’s office on Wednesday released audit letters detailing weaknesses in the city’s financial accounting.

[…]

The mayor’s office released 10 years of the audit letters, totaling 96 pages but did not include the appendices, which may include more detailed explanations of deficiencies identified by auditors. A spokeswoman said the mayor’s office released what the controller had sent to the city attorney last October and directed the Houston Chronicle to seek the appendices from Green.

[…]

“It sounds like exactly the right decision,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said of the letters’ release. “The more the public can review what’s being done with their money, the better.”

The most recent letters sent by outside auditors Deloitte & Touche on Dec. 18, 2012, noted three areas in which projected revenues appeared to be understated. Those three – $2.5 million in Municipal Courts, $2.9 million in “other revenues” and $4 million in construction activities – were deemed by city officials to be immaterial to the overall financial statements, and were corrected in the city’s annual financial report.

An appendix provided by Councilman Jack Christie’s office noted “significant deficiencies,” a term used by auditors to highlight policies or actions that could let inaccurate record-keeping or fraud go undetected.

“While there was significant improvement in the City’s financial reporting process in the current year, the City should enhance this process by requiring responsible financial reporting personnel, at the department level, to perform analytical reviews of financial results on a periodic basis,” the auditors wrote.

The 2003 audit letter listed 35 recommendations; the 2012 letter made only 10.

City finance department officials said in a written statement that they have addressed the findings, noting 2012 was the first time in 10 years that external auditors deemed the city a low risk for accounting errors in federally funded programs.

“There are less complaints than in 2003, and they are not that serious,” said Steven Craig, a University of Houston economics professor. “I’m not sure why they wouldn’t want to release that letter.”

You and me both. Houston Politics has a copy of the audit letters themselves, in case you’re curious. The original story says that the AG’s office issued the opinion in question “earlier this month”, but neither of the two opinions I see for 2014 on the index page have anything to do with Houston. In any event, this appears to be the end of this episode of mountains-from-molehills manufacturing.

State Bar clears Feldman

I believe this brings to a close the last unresolved issue involving former CM Jolanda Jones.

David Feldman

The State Bar of Texas has cleared City Attorney David Feldman of a grievance lodged by former Councilwoman Jolanda Jones that he mishandled an investigation of her.

Jones alleged last summer that Feldman violated the legal profession’s ethical standards by providing legal advice to her before an investigation into whether she used city resources to support her private law practice and later advised Mayor Annise Parker on the matter.

Feldman said he received formal notice from the State Bar on Friday that the grievance has been dismissed with no right of appeal.

See here and here for some background. Jones had been previously cleared by the District Attorney and the ethics panel, so as far as I know this puts a bow on the whole saga.

Council’s code of conduct

I’m not sure what to make of this.

City Council is considering imposing a code of conduct on itself that would give it the power to reprimand or censure members.

It already has the ultimate enforcement tool – impeachment – to punish misconduct.

However, there are no intermediate sanctions in between outright removal of a council member and looking the other way.

So, Councilman Mike Sullivan has been working with the city attorney and others to craft a code to rein in unbecoming conduct.

“Not every infraction would rise to the level of impeachment, but that does not mean you would not want to put a council member on notice that their behavior is not going to be tolerated,” Sullivan said. “Right now, we have no ability to police ourselves.”

[…]

Council conduct already is governed by an ordinance that prohibits using office for personal gain, disclosing confidential information, seeking future employment with organizations with business before the council, and more.

The draft’s disciplinary provisions would give council four progressively more severe sanctions to impose on violators: verbal reprimand, written reprimand, censure and impeachment.

In theory, I have no particular objections to this idea, but I would like to know what exactly we’re talking about before I sign on. What kind of conduct do we think has been going unpunished that we need to deal with? Let’s see what the specifics are, and then we can decide if it’s worth doing.

Interview with David Feldman

The main focus in Houston over the next few months will be Council expansion and redistricting. One of the people who will do the heavy lifting on this is City Attorney David Feldman. If you haven’t watched this video from a recent Council session in which Feldman outlined the history, legal process, and parameters for redrawing Council boundaries (Mayor’s Report, part 1), you should, it’s very informative. I wanted to know more, of course, and I had a few questions about some other recent city business, so I asked for an interview with him. Here’s what we talked about:

Download the MP3 file

My thanks to David Feldman for taking the time to talk to me.

Revising the city ethics code

I don’t know enough about the specifics of this to draw any firm conclusions, but it sounds reasonable enough from the description.

The city is poised to significantly tighten its ethics rules, closing loopholes that allow lobbyists to avoid registration and criminalizing some violations of a stricter code of conduct for city officials.

“It’s a very, very thorough review,” said City Councilman Mike Sullivan, whom Mayor Annise Parker credited for spearheading the changes.

Sullivan said he has felt the need to strengthen the city’s ethics rules ever since he has been on City Council.

On numerous occasions, lawyers representing companies or individuals have come to him to discuss city policy, he said. Rarely were they registered as lobbyists for the entities they represented, often saying they were at City Hall on behalf of a legal client, Sullivan said.

“That’s disingenuous to me, and that really disturbed me,” he said. “I’m about openness and transparency, and that really didn’t sit well with me, or the public.”

Under a proposal City Council is expected to vote on next week, that loophole, along with a host of others, would be closed. Now, unless a lawyer is performing services that cannot be done by anyone else, such as representing a client in a legal proceeding, the individual must register as a lobbyist.

Nice to see at least a temporary thaw in the Parker/Sullivan relationship. The real question with these things is the consequences for violating them. How likely are you to get caught, and what happens when you do? City Attorney David Feldman says violators will be prosecuted for misdemeanors under this ordinance. If so, then it ought to have a positive effect. We’ll see.

More on the red light camera Council vote

The fuller version of the Chron story addresses the question about whether the petition drive was lawful or not according to the city’s charter.

“It is your absolute sworn duty to place this on the ballot,” [Mayor Annise] Parker told council.

Several camera supporters on council disagreed, saying the proposal was “illegal” because it circumvented rules in the city charter that dictate that efforts to overturn city ordinances through referendum must be concluded within 30 days of a law taking effect. Since the red light camera ordinance was passed in 2004, some council members said, the petition was too late.

“Items like this don’t belong in the city charter,” said Councilwoman Anne Clutterbuck, who led the fight against the amendment. “Otherwise, we would be like California. … Anything we vote on at this table could be overturned by petition.”

[City Attorney David] Feldman, who forcefully argued that it was council members’ “mandatory ministerial duty” to put the amendment on the November ballot, acknowledged that the city charter does hold referendum proponents to the 30-day time limit. State law, however, has no such provision. He argued that state law would trump the charter in this case.

Clearly, that will be one of the issues for a judge to rule on, if and when someone files suit to stop the referendum. I want to also call your attention to this comment by JJMB from my previous entry that clarifies things further:

The City Charter itself has both a “referendum” section and an “initiative” section. The Kuboshes have avoided both of those procedures. “Initiative and referendum” are the way that voters have reacted to specific laws for hundreds of years. The hurdles are higher — react within 30 days and get 10% the highest Mayor election turnout in the last 3 years for referendum, or no time limit but 15% for an initiative. Notwithstanding the news reports, I believe that the initiative route has also been suggested as the way this should go — maybe not by KHS, but by some council members and lawyers.

I believe one could be a stickler and say that the 30 day process is the only way to go to rescind an ordinance that the representative body already put in place. But I read Kuffner’s prior post, and I’m willing to let the Kuboshes proceed with the initiative process, even though literally — and for 200 years — that is used to put a new ordinance in place without the representative body.

But it seems that the Kuboshes don’t want to go either of the way that the City voters — who put the City Charter in place — have established as the correct path.

Instead, the Kuboshes use state law to amend the charter itself. So along with “governance” type sections about whether the Mayor is strong or weak, how many councilmembers, term limits, voting procedures, etc., they want to add a specific red light camera rule. This is not the historical use of “referendum.”

But the 15% path is what … 40,000 signatures? So the Kuboshes took the easier 20,000 signature route.

Actually, by my calculation based on 181,000 votes cast in the last Mayoral election, it’s a bit more than 27,000 signatures. I’m unsure as a result of checking that figure where the 21,000-and-change figure for getting on the ballot this year came from, but if that was the standard, then a 15% threshold would be 31,500. Either one is more than the total that the Kuboshes submitted.

Anyway, JJMB’s comment clears up my confusion from that earlier post. I only quoted from section 3 of the city charter, entitled “Referendum”. I had skipped over section 2, entitled “Initiative”, because of this language:

The initiative shall be exercised in the following manner:

(a) Petition. A petition signed and verified in the manner and form required for recall petition in Article VI-a by qualified electors equal to fifteen per cent. of the total vote cast at the Democratic Primary for the nomination of Mayor and Commissioners, next preceding the filing of said petition, accompanied by the proposed legislation or measure in the form of a proposed ordinance or resolution, and requesting that such ordinance or resolution be submitted to a vote of the people, if not passed by the Council, shall be filed with the Secretary.

I saw the word “recall” and assumed it was specifically about recall elections, so I didn’t read this all the way through. Given that this mechanism exists, I take back my comments about the 30-day window being too restrictive. If this is the requirement for an effort outside of that time frame, then it’s clear that the Kuboshes have fallen short of the signature total needed, and it would seem that a state judge would be likely to toss this off the ballot. But again, until someone actually sues and a judge actually rules, it’s on.

One more thing:

Councilwoman Jolanda Jones questioned why council members did not put up a similar fight against another charter amendment proposal backed by powerful engineers that asks voters to tax themselves for an $8 billion program to shore up the city’s infrastructure and fix flooding problems.

“I just want us to be consistent,” Jones said.

The difference here is that the Kubosh effort is aiming at overturning an existing Council-enacted law, while the Renew Houston effort is not. At least, that’s how I perceive it. But I take CM Jones’ point.

Interview with Mike Laster

Mike LasterMoving back to District F, today’s interview subject is Mike Laster. Mike is an attorney specializing in real estate, and was for six years a Senior Assistant City Attorney in the Real Estate Division of the City Attorney’s Office. Mike is a resident of Sharpstown, where he is Secretary and founding Board Member of the Greater Sharpstown Management District, and past President of the Sharpstown Civic Association.

Download the MP3 file.

PREVIOUSLY:

Karen Derr, At Large #1
Brad Bradford, At Large #4
Stephen Costello, At Large #1
Lane Lewis, District A
Lonnie Allsbrooks, At Large #1
Noel Freeman, At Large #4
Brenda Stardig, District A
Oliver Pennington, District G
Amy Peck, District A
Herman Litt, At Large #1
Natasha Kamrani, HISD Trustee in District I, not running for re-election
Alex Wathen, District A
Robert Kane, District F
Council Member Melissa Noriega, At Large #3
Jeff Downing, District A