Toothless Ethics

The Texas Ethics Commission has its own ethical problems, a fired staffer says.

Toothless Ethics
Photo By Doug Potter

A whistleblower lawsuit filed Nov. 27 against Texas Ethics Commission officials alleges that the agency charged with enforcing the state's campaign and ethics laws has itself been playing political favorites.

According to the petition filed in state district court by former TEC Assistant General Counsel Robert Schmidt, Schmidt was fired in April after expressing his concern to the agency's Executive Director Tom Harrison and General Counsel Karen Lundquist that the two officials, in violation of commission rules, knowingly failed to mail a legally required "status letter" on a pending complaint. "The reason given for my termination was that I made two errors on a specific job assignment," Schmidt wrote in his May complaint to the commission's human resources department. "I firmly believe, however, that Mr. Harrison actually terminated me because of recent conversations I had with him and Ms. Lundquist, general counsel, in which I questioned the propriety and legality of Mr. Harrison's conduct in connection with a sworn complaint."

The sworn complaint was filed with the Ethics Commission in January 2001 against an elected official by a person described only as a "watchdog who publishes and maintains a political Web site." (Because of confidentiality requirements under state ethics law, the names of both the watchdog and the elected official are omitted from court filings, but the Chronicle has learned the complainant is Dallas news Web site, which lodged a complaint against Dallas City Council Member Mary Poss.) Schmidt was assigned to investigate the complaint.

According to Schmidt's petition, the unnamed official [Poss] hired as her attorney is a friend of Harrison who had previously represented numerous clients -- including "a major political party" -- before the commission. Schmidt alleges Harrison's violated agency procedure by communicating directly with the lawyer, and he also told Schmidt the complaint needed a "quick resolution" because the lawyer was about to leave private practice for a political career. Schmidt says he presented a summary of the complaint to the commission in November 2001, and the commission proposed a resolution to Poss and her attorney. Poss had three weeks to respond but never did so.

In March, Schmidt says, he prepared nearly 30 quarterly "status letters" to be sent to complainants, including one for, confirming the commission's action establishing "credible evidence of a violation" and the respondent's failure to reply. Schmidt presumed the status letter had been processed and sent by Lundquist, but in late March, he got a call from the complainant requesting it. He was told by another staffer that Harrison had held the letter, and he complained to both Harrison and Lundquist. Two weeks later, Schmidt says, he was told to resign or he would be fired. Schmidt refused to resign without a written recommendation, and he was fired on April 30, ostensibly for making two mistakes on a half-day assignment for the U.S. attorney's office.

Lundquist said she has not yet seen the lawsuit and cannot comment on pending litigation, but added, "I can say that we performed an internal investigation and found no whistleblower actions and that [Schmidt] was fired for cause." Appended to Schmidt's petition is a memorandum by Harrison recounting the official reason for the dismissal. Harrison and Lundquist reject Schmidt's charges altogether and say they fired him solely for his "grave" mistakes on the U.S. attorney assignment. "As a result of these errors on a very important project," Harrison wrote in the memo, "I have lost confidence that I can rely on Mr. Schmidt's work." A TEC human resources department investigation concluded that there was no "probable cause" to confirm that the commission had violated the whistleblower law, or even that "a whistleblowing event actually occurred." But Schmidt claims errors were rampant at TEC -- including serious breaches like the misstatement of fines and missing statutory deadlines for open-records requests -- yet to his knowledge, no other offender had been fired.

It now appears that the court will have to determine the issue. This isn't the first time the actions of the Ethics Commission have been called into question. A sunset review of the agency suggested that it is effectively hamstrung by its inability to conduct thorough investigations -- one of a host of complaints leveled by governmental watchdog groups. In the agency's 10-year history, the commission hasn't audited a single campaign or initiated an investigation of its own, although it has the power to do so. Moreover, in response to 729 external complaints, the agency has conducted a single public hearing.

According to his attorney Derek Howard, Schmidt's lawsuit raises basic questions about the agency's efficacy. "The Ethics Commission not only doesn't have teeth, it doesn't have any dentures," Howard said in a press release. "It is ironic and sad that the leadership of the Texas Ethics Commission, which is responsible for ensuring ethics in state government, doesn't have any ethics of its own."

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Texas Ethics Commission, TEC, whistleblower, Robert Schmidt, Tom Harrison, Karen Lundquist, Derek Howard, Sunset Commission

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