Sullivan's Attorney: Texas Ethics Commission Ruling 'Grossly Irresponsible'

Sullivan's Attorney: Texas Ethics Commission Ruling 'Grossly Irresponsible'

AUSTIN, Texas–Using tactics reminiscent of the Obama Administration’s habit of timing the release of questionable information when it is least likely to have an impact on the news cycle, the Texas Ethics Commission (TEC) issued their “Final Order in the Matter of Michael Quinn Sullivan” yesterday in the immediate aftermath of Governor Rick Perry’s press conference announcing the deployment of the Texas National Guard to the border. (Disclosure: Sullivan is a Breitbart Texas contributor.)

Last month, after a two-and-a-half year investigation into Sullivan’s activities with the Empower Texans organization, the TEC conducted a nearly 12 hour hearing, the first publicly open hearing on the matter. As previously reported by Breitbart Texas, the TEC failed to address challenges presented by Sullivan’s attorney, Joe Nixon, regarding the vagueness of the lobbying law, along with repeated problems following procedural rules and properly authenticating evidence.

After meeting behind closed doors during the past few weeks, the TEC ruled against Sullivan, imposing a $5,000 civil fine against Sullivan for two years of violations they claimed (2010 and 2011), for a total fine of $10,000. The specific finding stated that “The Texas Ethics Commission unanimously finds that Mr. Sullivan, as part of his regular employment, communicated directly with members of the legislative branch to influence legislation without properly registering as a paid lobbyist.”

Breitbart Texas had an exclusive interview with Nixon shortly after the TEC issued their ruling. He characterized the TEC’s ruling as a “shocking” result that “took a vague law and essentially rewrote it” and “certainly doesn’t follow any rules of procedure or evidence…their viewpoint [of the law] is very strange.”

As noted above, the ruling was issued as a unanimous opinion. This struck Nixon as odd, because one of the TEC Commissioners, Chase Untermeyer, an appointee of Texas House Speaker Joe Straus, was not present during any part of the hearing. Pointing out that the point of a hearing is for the finders of fact to be able to hear all the evidence and judge for themselves the credibility of witnesses, just like a jury would in a traditional trial, Nixon questioned how Untermeyer could have possibly made such judgments without being there in person. Untermeyer was not even able to read a transcript of the proceedings. There was a court reporter at the hearing, but an official transcript has yet to be produced, so it is not clear upon what basis Untermeyer was able to reach his decision on this matter. The TEC’s ruling provides no clarity regarding what role Untermeyer played in reaching the decision.

The ruling also rejected Sullivan’s argument that his activities fell within the “media organization exclusion” of the lobbying registration statute, Texas Government Code § 305.004(1). In a lengthy section, the ruling lists 16 different activities that would not require lobbyist registration, including writing articles and opinion pieces about the Texas Legislature, posting such articles and opinion pieces on a website, creating “scorecards” or “fiscal responsibility grades” that evaluated legislators, giving awards to legislators, communicating with the public or donors about legislators, paid advertisements supporting or opposing legislation, and social media posts. The TEC also listed several examples of when Sullivan engaged in these types of “media” activities but also directly communicated with legislators, and stated that this constituted lobbying.

Notably, the ruling fails to address the fact that the precise language of the statute does not place restrictions on to whom a media outlet is communicating or distributing their information. Arguably, under the TEC’s strict interpretation as set forth in this ruling, any newspaper, magazine, news clipping service, or other media outlet that sent anything containing an article evaluating legislation, opinion editorials on legislative matters, or similar materials to a legislator would similarly fail to satisfy the media exclusion. As Breitbart Texas previously reported, several other Texas media outlets have their own legislative scorecards and a countless number produce opinion pieces.

The ruling also made the accusation that the TEC was “left with the inescapable conclusion that Mr. Sullivan and Empower Texans have destroyed or lost” evidence, drawing a sharp rebuke from Nixon that these claims were “completely unsubstantiated.”

Nixon noted that the TEC’s attorney did make some comments on that topic during his closing argument, but again, there was nothing in the testimony or evidence that day to support it. Pointing out that Texas has a 30 day email retention policy, after which messages are deleted, Nixon told Breitbart Texas that Empower Texans followed a similar policy. “There’s no reason to have emails that are four years old,” he said, and it was “grossly irresponsible” for the TEC to try to characterize that as somehow improper.

Neither Sullivan nor any other witness was questioned about any destruction, attempts to conceal, or any other failure to provide evidence at the hearing. No evidence was actually entered on this issue. Likewise, no witness was questioned and no evidence was entered regarding Empower Texan’s document retention policy.

A review of the timeline of this case is helpful here. As stated in the TEC’s ruling, sworn complaints were filed against Sullivan in April 2012, regarding allegations of activities that took place in 2010 and 2011. “Preliminary review hearings” were not conducted until over a year later, in August and October 2013, with additional “prehearing conferences” in the spring of 2014. During a February 2014 prehearing conference, the TEC voted to issue subpoenas duces tecum in connection with the matter, which is the legal procedure for demanding documentary evidence. The TEC then issued revised subpoenas in April 2014, and Sullivan filed an objection to the revised subpoenas later that same month. After a series of court hearings and legal filings back and forth–including a federal judge issuing an opinion that the TEC’s document request was so broad in scope as to be “absurd” and “unenforceable”–the TEC repeated their request for documents and Sullivan produced about eighty pages in June 2014.

Empower Texans also released a statement on their website in response to the ruling, specifically criticizing the failure of the TEC to conduct public deliberations, as provided by the Texas Open Meetings Act. The statement also questioned the issuance of the ruling as a “unanimous” opinion, even though Untermeyer was not present during any part of the hearing. The statement had sharp words about the allegations that Sullivan had “destroyed or lost evidence.” “To misinterpret the law is one thing, to misunderstand the facts is another, but to make false accusations not relevant to the proceedings is reprehensible.”

Charactering the ruling as “a political agenda of character assassination” against Sullivan, Empower Texans reaffirmed their pledge to continue the fight: “We are excited to challenge the Commission in a court of law, where the rules of evidence and procedure are followed. The Commission knows that its ruling will have no permanent effect…the commission will soon have to answer for its failures to obey the very laws that it is tasked with enforcing.”

Sullivan also posted several pointed tweets in response to the ruling, showing that his commitment to what he has always framed as a fight for free speech rights has not wavered. Sullivan twice referred to the ruling as “meaningless” and said that he would definitely appeal. “As promised, TEC found me ‘guilty.’ Meaningless, but indicative of establishment’s vendetta machine,” wrote Sullivan. “TEC ruling in a nutshell: they want Texans to have a license to speak to lawmakers.”

Nixon expressed similar concerns about what the TEC’s ruling could mean for free speech rights if left unchallenged. “If you’re in the media, you ought to be very afraid of this ruling,” he warned. “They’ve just completely thrown out the media exemption [to the lobbying registration requirements]. They’ve basically eviscerated the media exemption, so no one in the media has any clarity regarding what interactions or communications [with legislators] constitute lobbying.” Nixon noted that this situation was especially worrisome for independent journalists and bloggers.

Confirming Sullivan’s statement that he would appeal the TEC’s ruling, Nixon said that they would file an appeal to the Travis County District Court soon. Breitbart Texas will continue to follow this story.

Sarah Rumpf is a political and communications consultant living in Austin. You can follow her on Twitter @Rumpfshaker.