Before Changing Chairs, Ethics Commission to Renew a Debate

This is one in a series of occasional stories about ethics and transparency in the part-time Texas Legislature.

The Texas Ethics Commission’s board convenes Thursday to choose new leadership for 2013 — a year when the agency is facing legislative scrutiny and a likelihood of reform.

But before that happens, its commissioners will review an ethics opinion they did not agree on two months ago, over the role the state’s elected officials can play in nonprofit organizations.

Attorneys at the Ethics Commission, a depository for financial, campaign and lobby filings that also advises legislators on how to interpret state law, provided their eight commissioners with a draft opinion late last year suggesting that legislators should not be paid to lead nonprofit organizations if they solicit financial contributions for those organizations. Such a relationship “creates the appearance that the contribution might be made to inappropriately influence the legislator,” the draft opinion said, arguing that contributions to the nonprofit from lobbyists or special interest groups “could reasonably be expected to impair" the lawmaker's "independence of judgment in the performance of official duties.”

But some of the commissioners — who are appointed by Gov. Rick Perry, Lt. Gov. David Dewhurst and House Speaker Joe Straus, and serve four-year terms — were dissatisfied with the original opinion. Vice Chairman Jim Clancy, a Perry appointee who on Thursday is expected to be elected chairman for the next year, argued that it would dramatically limit the employment opportunities of part-time legislators working back in their communities. Clancy suggested that preachers, for example — who must pass the offering plate to pay themselves a salary — would be hard-pressed to serve their flock and serve in the Legislature under such an interpretation.

“We pay our legislators, what, $6,000, $7,000 a year?” Clancy said at the November meeting, adding, “If we’re going to have a citizen Legislature, they’re going to be involved in stuff.”

A vote on that issue was tabled in November, and the opinion was sent back to Ethics Commission staff for revision. Clancy said the opinion commissioners are expecting to vote on this week will not advise lawmakers against being employed by nonprofits and soliciting funds for them concurrently.

The concern with the previous version, he said, was that it seemed to “categorically say that’s illegal or unethical,” putting “the candidate or officeholder in a very difficult position.” An opinion approved by the commissioners becomes the standing legal guidance for lawmakers on that particular ethical issue. 

“There’s a line that can’t be crossed — it can’t just be a position [at the nonprofit] that’s a figment of someone’s imagination,” said Tom Ramsay, a former lawmaker and the outgoing chairman of the board. “But we just don’t need any more rules or regulations.” 

Another opinion that sharply divided the board in November — one dealing with rewards points on campaign credit cards — won’t be on Thursday’s docket; it was taken off the table entirely.

Commission lawyers had drafted an opinion stating that candidates should not use the rewards points that accumulate on their campaign credit cards for personal purposes — hotel stays or airfare, for example — if the credit card bill was paid with the proceeds of political contributions. They argued it was a conversion of “a political contribution to personal use,” which is prohibited by the state’s Election Code.

Again, some commissioners — who had tabled the issue at their August meeting — disagreed.

Clancy was one of the most vocal, calling the bookkeeping for such a provision “a nightmare.” He said there was good reason many corporate employers, the Federal Elections Commission and the Internal Revenue Service don’t prohibit the practice: “This is how the world works.”

His argument sparked a reply from the Texas Ethics Commission’s executive director, David Reisman, who defended the opinion and said candidates who can’t keep their records straight simply shouldn’t cash in their rewards points.

“If you’re running for office, you have an obligation” to keep it straight, Reisman said. If you don’t, he said, “you’re using campaign money, you’re using other people’s money, to enrich yourself.”

In the end, the vote on the opinion was tied — meaning the Ethics Commission could not rule. It was the first time that had happened since 2004, agency general counsel Tim Sorrells said. 

Clancy said that inaction doesn’t mean that the personal use of campaign credit card points is “necessarily right or wrong.” It means that lawmakers must rely on existing law — in this case, an Election Code that says nothing specific about rewards points — to decide how they want to proceed.  

“I think the commissioners were concerned that something people do every day shouldn’t be treated as unethical,” Clancy said. 

But Ramsay, the outgoing Ethics Commission chairman, said that if he were still in the Legislature, "I would not be using those bonuses and points and money personally."

"I think it's clear in statute that whatever is earned, whether interest, or bonus points or whatever that's earned off of money in your campaign, stays in your campaign," he said.  

The Ethics Commission is up for "sunset" review in the current legislative session, a time when agencies usually face major reform legislation based on the recommendations of a state panel. That panel has recommended strengthening the agency's enforcement power through changes to its investigations process, decreasing fines for minor reporting errors and finding resources to update the agency's outdated technology. 

“If politicians had their way, and I was one for 12 years, we would not have liked to have an Ethics Commission,” Ramsay said. “But we needed one. There was way too much stuff that needed the light of day to shine on it.”