NLF Release: Zimmerman Explains Why TEC Must Dismiss Groundless Complaint Filed by Political Opponent

AUSTIN, TEX.—This week, Austin taxpayer-advocate and former District 6 Councilmember Don Zimmerman explained to the Texas Ethics Commission why it must dismiss a groundless complaint filed by a political opponent in 2015.

Zimmerman, a conservative activist who has long rankled the tax-and-spend liberal establishment in Austin, really riled up his opposition when he won a seat on the City Council in December 2014.  That was Austin’s first election cycle with district (rather than at-large) elections.  Many powerful local Democrats had fought aggressively to retain the all-at-large electoral system, fearing that a district-based system would break up the “progressive” stranglehold on local politics.  They lost that battle, and then when Zimmerman actually won the District 6 seat, the opposition intensified further.

Soon after Zimmerman took his seat on the Council, Bill Aleshire, the former Democratic Travis County Judge, filed a complaint with the TEC alleging that Zimmerman had paid his wife $2,000 “from political contributions” for campaign work in violation of the Election Code.  The relevant statute provides that a candidate “may not knowingly make…a payment from a political contribution” to the candidate’s spouse or dependent child “if the payment is made for personal services rendered by…the spouse or dependent child.”  Tex. Elec. Code § 253.041(a).  Zimmerman has confirmed that his wife Jennifer worked tirelessly for the campaign, helping with fundraising, proofreading, blockwalking and organizing volunteers.  He estimated the value of her work at a minimum of $10,000, and he was embarrassed to pay her only $2,000.

Aleshire’s complaint acknowledges that it is based only on Zimmerman’s campaign finance report (which accurately disclosed the $2,000 payment to Jennifer Zimmerman for “campaign office and field work”) and news reports.

However, if Aleshire reviewed Zimmerman’s campaign reports, he must have also been aware that Zimmerman had deposited $20,000 of his personal funds into the campaign account, because those deposits were properly reported as loans as required by law.  Of course, Aleshire had no good-faith basis for alleging whether the payment came “from a political contribution,” which would implicate the statute he cited in his complaint, or from Zimmerman’s personal funds, because he had no access to Zimmerman’s campaign bank statements or any knowledge of Zimmerman’s internal campaign operations.

In response to the complaint, Zimmerman voluntarily provided his campaign bank statements to the TEC, which show that the first deposit was $10,000 from Zimmerman’s personal funds (the first loan, as disclosed on his campaign report).  Between that first deposit and the payment to Jennifer, the balance never dipped below $2,900.  Therefore, more than enough personal funds remained in the account from which to draw the $2,000 payment.

Zimmerman filed a legal memorandum with the TEC this week explaining that Texas law does not require candidates to designate or use any particular accounting method.  This is something Former TEC Chair Paul Hobby has expressly recognized, when he chastised a group responsible for filing numerous complaints based merely on assumptions from information on the face of candidates’ reports.  See Letter from Chair Hobby (Dec. 31, 2014).  Even if a formal accounting method were required, applying “last in-first out” accounting, a generally accepted accounting principle, more than $2,900 of Zimmerman’s personal funds remained in the account when the payment was made.

“The TEC has recognized that the campaign finance reporting system is not an accounting system,” said attorney Jerad Najvar, “but even if formal accounting were required, it’s clear that sufficient personal funds remained in the account.”  Najvar continued: “But we don’t even need to go that far.  Zimmerman had loaned the campaign $20,000, something everyone knew because it was properly reported.  So the idea that he ‘knowingly’ used campaign contributions doesn’t make sense.  He could have written a check to ‘Don Zimmerman’ as a partial loan repayment and put the money in his pocket, instead of writing a transparent check to his wife for a small part of the invaluable assistance she provided to the campaign.”

The TEC is expected to consider the complaint at an upcoming meeting, either March 30 or May 17.

Jerad Najvar practices political and appellate law and is founder of the Najvar Law Firm in Houston.  He served as co-counsel to Shaun McCutcheon in McCutcheon v. FEC, in which the U.S. Supreme Court struck down the federal aggregate contribution limits, and lead counsel in Catholic Leadership Coalition v. Reisman, in which the Fifth Circuit Court of Appeals struck down a waiting period on Texas PACs.

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