Legal Challenge Accuses Texas Ethics Commission of violating Open Meetings Act

Legal Challenge Accuses Texas Ethics Commission of violating Open Meetings Act

AUSTIN, Texas — Attorneys for Michael Quinn Sullivan, the head of the Empower Texans organization, have filed a legal challenge against the Texas Ethics Commission (TEC) regarding the complaint filed against him alleging that he had improperly failed to register as a lobbyist. The TEC held a public hearing on the matter on June 25, and a “Final Order” was issued by a unanimous vote of the TEC a little more than a week ago, ruling against Sullivan and imposing a $10,000 fine. (Disclosure: Sullivan is a Breitbart Texas contributor.)

The challenge, titled “Petition for Declaratory Relief and Injunctive Relief and Application for Temporary Restraining Order,” was filed with the Travis County District Court. Asking for “declaratory relief” is a request for a court to rule on the rights, duties, or obligations of a party under the law, and asking for “injunctive relief” is for the court to order a party to do or refrain from doing specified acts. Here, Sullivan is asking the court to find the Final Order void for violating the Texas Open Meetings Act (TOMA), to prevent the TEC from taking any further action on the Final Order, to comply with TOMA in all proceedings moving forward and hold properly noticed public deliberations, in addition to a request for attorneys’ fees and other standard legal relief.

TOMA, set forth in Chapter 551 of the Texas Government Code, requires official government actions to be conducted in a manner that is open and accessible to the public, with prior notice, unless an express exception is granted. As an official agency of the state of Texas the TEC must comply with TOMA’s open meetings and notice requirements, and § 571.139(b) explicitly states that TOMA “does apply to a formal hearing,” such as the one the TEC held for Sullivan’s case on June 25.

Prior to the June 25 hearing, Sullivan filed a pleading formally notifying the TEC of their obligations to comply with TOMA under § 571.139(b) and requesting that “any and all deliberations and decisions of the TEC” from the hearing be conducted in public. He also filed several other pleadings regarding evidentiary objections and other legal issues. Sullivan’s attorney, Joe Nixon, attempted to have the TEC hear these pleadings at the beginning of the June 25 hearing, but TEC Chair Jim Clancy refused to discuss them, saying that they would “take them under advisement,” but adjourned the hearing without considering any of these pleadings. To date, there has not been an actual ruling on any of these matters.

As previously reported by Breitbart Texas, one of the TEC commissioners, Chase Untermeyer, was not present at the hearing, but the vote of the TEC was reported as unanimous. It is not clear upon what basis Untermeyer made his decision, especially because a transcript of the hearing did not seem to be available until last week (more on the mysterious transcript below).

More egregiously, when Clancy adjourned at the end of the June 25 hearing, the matter was never noticed for public meeting again, but somehow the TEC was still able to deliberate, provide enough information to Untermeyer for him to evaluable the case, vote, and draft their Final Order with a unanimous ruling. Since no meeting was called, the only logical conclusion is that the TEC discussed the case and voted privately.

This is the heart of the argument in Sullivan’s Petition: because the TEC adjourned at the end of the June 25 public hearing and issued a ruling without a properly noticed public hearing as required under TOMA, the Final Order lacks legal merit and should be treated as void. The issue is complicated by Sullivan’s statutory right to appeal a decision of the TEC to the District Court, as long as he files within thirty business days after receiving the decision. Because a void order does not have legal effect and cannot be the basis for an appeal, what Sullivan is specifically requesting is for the court to “stay,” or pause, the thirty day deadline to allow time for the TEC to provide notice and have a public meeting to deliberate and vote on this matter. The TEC could then issue a new Final Order after that public hearing, which, if it were unfavorable, Sullivan could appeal.

Now, back to the odd situation with the transcript of the hearing. Intriguingly, last week, Steve Bresnen, the lobbyist who drafted the complaints against Sullivan, sent an email to legislators and reporters that loudly criticized Sullivan. Tucked in the pages of hyperbolic arguments and name-calling (Bresnen immaturely refers to Sullivan as “Mike,” knowing that he prefers “Michael” and seems to use every possible variation of “lie” or “liar” available in the English language), are references to various pages of a transcript of the June 25 hearing.  Scott Braddock wrote about Bresnen’s email at the Quorum Report (article behind paywall, “SB: A terrible, no good week for MQ Sullivan,” dated June 28, 2014), and included a link to this transcript, which you can view here.

Note the last two pages of the transcript: it is not signed by the court reporter, indicating that this is a draft copy for review by the parties. Breitbart Texas interviewed Sullivan’s attorney Joe Nixon regarding Bresnen’s email attacking his client and the status of this transcript. Nixon was perplexed about the transcript, stating that neither Sullivan nor his attorneys had been provided with a copy of the transcript or even been told it was available. (Nixon later obtained a similar draft copy of the transcript after speaking with Breitbart Texas and filed it as an exhibit with the Petition challenging the Final Order.)

“I haven’t been given a copy of the transcript”, said Nixon, calling it “shameful” and “embarrassing” that the TEC released it to outside people before official parties had it,”Why does Steve Bresnen have one? Is he the official spokesman for the TEC now? Why are they making him their mouthpiece? I think the fact that the transcript was released to third parties effectively destroys their credibility on this.”

Nixon also took issue with Bresnen’s strident tone in his email and questioned why he was taking such a public role in spearheading this cause for the TEC. “What’s the burr under his saddle? No one believes he’s doing this on his own, just because he ‘believes in freedom.’ The only way he could have gotten the transcript is from the TEC.”

Regarding the specific accusations in Bresnen’s email, that Sullivan lied about what happened at the hearing and destroyed evidence, Nixon strongly objected, and related it to the attitude exhibited by the TEC throughout this complaint process. “They [the TEC] ask, ‘why the vitriol?’ Well, this is it. There’s a massive amount of distrust [that has developed with] the whole process of handling the complaint.” Nixon pointed out that the TEC sent Sullivan “outrageously broad” document requests, they responded and provided proper objections, and then “they feign outrage that we don’t comply,” instead of following the regular legal procedures to challenge their objections. “That’s American, a basic American right. You get to object [to legal discovery requests],” adding that it was not acceptable to attempt “to criminalize the people who speak out in opposition to government.”

“We believe that [the TEC] will be called to answer for their actions at the appropriate time,” concluded Nixon, clearly referring to the Petition that was filed late last week.

Tony McDonald, the general counsel for Empower Texans, came to the same conclusion as Nixon: that Bresnen must have obtained the transcript from the TEC and that it was odd that they provided it to him before the actual parties. McDonald also provided more background on how overly broad the TEC’s original document requests were, asking for documents that were far beyond the scope of any traditional legal subpoena.  “To comply with these subpoenas would force me to read every digital file and every scrap of paper in our office,” said McDonald, explaining that the request covered drafts and hypotheticals, and included vague and broad wording that made it impossible to run computer searches.

Accordingly, they objected to the TEC’s subpoena and the issue was heard by Judge Sam Sparks in the Austin Division of the United States District Court for the Western District of Texas. At the hearing on the matter, Sparks criticized the subpoenas as “absurd” and “overbroad,” saying that he knew “of no courtroom in the land that those subpoenas would be approved.” The TEC agreed to revise their subpoenas, the new subpoenas were sent to Empower Texans, and McDonald told Breitbart Texas that Empower Texans responded to the new subpoenas with documents that were responsive to the requests, as well as some objections targeted at some of the requests.

None of the TEC commissioners ever responded to Empower Texans’ production of documents or made any challenge to their objections or further request for more documents. According to McDonald, if the TEC had challenged the their objections in court and prevailed, they would have complied, but they never heard another word about the documents until the attorney for the TEC made the baseless and unproven accusation in closing arguments at the June 25 hearing that they had destroyed documents.

McDonald was offended by the accusations from the TEC and Bresnen that they had lied and destroyed evidence. “It is outrageous that they [are saying] this. They’re attacking my ethics, without any proof.” He also mentioned the refusal by Clancy to hear any of the pre-hearing motions, one of which had been filed by TEC staff and, if it had been heard, would have elicited testimony from Empower Texans regarding their email and document retention policies. If Clancy had heard the motion, McDonald explained, then he would have heard information that countered accusations of destroying evidence.

“Refusing to hear the motions – that’s not how you find the truth,” said McDonald, “but they’re not interested in the truth, [they’re] just interested in tearing Michael Quinn Sullivan down. It is insulting and outrageous, the things they say about him, when he’ s fighting this [battle] for every journalist and citizen in Texas.”

(Disclosure: Sullivan is a Breitbart Texas contributor)
Sarah Elizabeth Rumpf is a political and communications consultant living in Austin. You can follow her on Twitter at @rumpfshaker.