Mary's Scarlet Letter

Poss needs to pony up details on her ethics finding

Mary Poss has an ethics issue that isn't going away. One person has been fired; allegations have been made of illegal behavior by state officials seeking to protect Poss from bad publicity; a whistleblower suit has been filed; a criminal complaint has been made.

At every step of the way it just gets worse, and the person who has turned this molehill into a mountain is Poss herself.

More than two years ago, a Web page publisher complained to the Texas Ethics Commission that Poss had broken the law by writing a series of large checks to herself and her husband from her campaign funds. If there was a violation, it was fairly technical--a campaign bookkeeping error.

To defend against the claim, Poss hired a well-connected Republican lawyer, a personal friend of the man who was then executive director of the ethics commission. From all appearances, the ethics commission subsequently broke the law by refusing to provide the Web page publisher with a legally required update on the status of his complaint.

A lawyer on the staff of the ethics commission went to the executive director and his deputy and warned them they were breaking the law by shutting off information to Allen Gwinn, publisher of dallas.org, a Web page devoted to iconoclastic reporting about Dallas City Hall.

Two weeks later the lawyer was fired. He eventually filed a lawsuit against the ethics commission under the Texas Whistleblower Act. Gwinn says he has filed a criminal complaint against the commission with the Travis County district attorney. The Travis County District Attorney's Office did not deny it was investigating the ethics commission on Gwinn's complaint but stopped calling me back when I asked where their investigation stood. Gwinn--who has a campaign sign for Poss' opponent, Laura Miller, in his yard but occupies no position in the Miller campaign--is vowing to turn his Poss problems into a campaign issue in the May 3 mayoral vote.

I worked on this story two years ago and decided then it wasn't worth writing. Like Gwinn, I went through Mary Poss' campaign finance reports from the previous few years and saw that she had written checks to herself and her husband in 1998 and 1999 for just over $30,000, reimbursing herself for campaign bills she said they had paid out of their own pockets.

About two days into my own smudgy-fingered perusal of the Poss campaign reports at the back table in the city secretary's office, a brand-new stack of "amended" Poss reports suddenly showed up. These spanky clean documents contained detailed listings of the expenditures for which Poss said she had been paying herself and her husband.

The law says you have to list the expenses when they happen, not a year later when the Dallas Observergoes through your records. But I was left with pretty small potatoes. Poss told me--I paraphrase a little because I no longer have notes of this conversation--that she had enjoyed a life in which she had not had to worry a lot about money. This kind of record-keeping, she told me, was typically left to other people.

And it's not that anybody ever thought the Posses were stealing. Mike Poss was H. Ross Perot's chief financial officer for 21 years. If he ever got in a position where he needed to steal, we'd look down there one morning and see that City Hall was missing, not $30,000.

To represent her at the ethics commission, Poss hired Dallas lawyer Ken Anderson. Anderson, who is now appointments secretary to Governor Rick Perry, acknowledges that he is a personal friend of Tom Harrison, who was then executive director of the Texas Ethics Commission.

"Yes, I absolutely know Tom Harrison," Anderson told me, "but I never discussed the substance of the case [with him]."

Texas Ethics Commission investigations are secret. But the commission is required by law to send update notices at least four times a year to the person who filed the complaint. And even though those notices don't provide much detail, there are certain things one can deduce.

The commission can simply kick out a complaint--no jurisdiction, wacko, never happened, involves Elvis Presley, whatever. But if the commission proposes a "resolution" of the complaint--kind of like an out-of-court settlement--it means they think there was something to it.

By April 2002, a year and a quarter after he'd filed his complaint, Allen Gwinn was on tenterhooks: He had been following the process closely and knew that his next notification would tell a tale. Either the complaint would be kicked, meaning he was out of the ballgame, or a resolution would have been proposed or agreed upon. If he got that much confirmation, he could declare at least partial victory on his Web page.

Robert W. Schmidt, a six-year staff attorney with the commission who was handling the Poss complaint, says he learned in early April 2002 that Executive Director Harrison and his top deputy, Karen Lundquist, had "intentionally held back" the letter they were required by law to send to Gwinn. That letter would have informed Gwinn that the Poss matter was "still pending" and slated for a "preliminary hearing," which Gwinn would have interpreted as his partial bingo.

Schmidt, who is now suing the commission, says in his suit that Harrison and Lundquist were sitting on the letter because they knew Gwinn would infer from it that Poss was not un-guilty and that he would use the information to embarrass her. Schmidt charges in the suit that illegally keeping the letter from Gwinn was a favor to Poss and to Poss' lawyer, who was the executive director's buddy and a friend of the governor.

I tried by phone and by fax to reach Harrison, the former executive director, but I was unable to raise him. Current officials of the ethics commission declined to discuss the Poss case or Schmidt's suit. But they did confirm that the commission only proposes a "resolution" of a complaint when it believes there is merit.

Schmidt says he went to Harrison and Lundquist and warned them they were breaking the law by withholding the letter from Gwinn. Two weeks later, Harrison and Lundquist fired him. They said he was being fired because he had omitted one document from a long list provided to another agency in an unrelated matter. Schmidt says he did omit the document in error; the omission was discovered immediately; the document was provided; it was a no-harm, no-foul clerical error and not the real reason they were firing him.

Schmidt is suing the commission on the grounds that his firing "constitutes a blatant violation of the Texas Whistleblower Act...which prohibits a state government entity from retaliating or otherwise discriminating against a public employee who in good faith reports a violation of law to an appropriate law enforcement authority."

At the end of 2002--one week after Schmidt filed his suit--Gwinn finally received an update. It told him that the commission had proposed a resolution of the complaint almost a year before, in November 2001, and that Poss had not accepted the proposal.

Immediately, Gwinn posted a Web page with a banner headline saying, "Poss Found Guilty!" or words to that effect. He says it was his interpretation of ethics commission rules that, "In order for the commission to have got to where they got to now, the commission would have had to have voted by a super-majority to find her guilty, to find that a violation had occurred."

Gwinn says he would treat Mayor Miller the same way if she broke the law. But it needs to be said that he is a longtime antagonist of Poss. And calling somebody guilty just because that's what you infer from the process is not a practice of mainstream journalism. The law, however, still applies: If Gwinn was entitled to the letter, he was entitled to the letter.

Even though Schmidt no longer works for the ethics commission, he is still bound by its confidentiality rules and won't discuss some details of the Poss case. But Schmidt is emphatic on one point: What Gwinn did, by publishing that headline on his Web page, was exactly what Poss and her high-powered Austin friends were afraid of.

"It was the exact thing that I believe the ethics commission and Tom Harrison and Ken Anderson did not want to happen," Schmidt says, "and it is why they kept his status letter back in the first place."

Which was illegal. The Poss complaint, by the way, is still unresolved and pending before the ethics commission, because Poss won't agree to the proposed resolution.

Gwinn thinks Poss should clear the air on the matter before the May 3 mayoral election by making public the commission's letter to her proposing a resolution. That letter would contain a description of what the commission believes she did wrong. Toward that end, Gwinn has commissioned 100 T-shirts that say, "Mary--Show us the Texas Ethics Commission letter!!"

So far Poss and her people aren't talking. I called her office and her campaign and received no response. I called David Pittman, her treasurer, who was nice enough at first but slammed the phone in my ear the minute he heard the words "Texas Ethics Commission."

The original offense here may have been small, even technical. But that just makes the situation worse, in terms of Poss' judgment. If this was all over a minor bookkeeping error turned up by a Web page gadfly, why couldn't Poss simply have 'fessed up, taken her licks and paid the $100 fine with which the ethics commission typically slaps people's wrists?

Why did this have to turn into a bunch of high-powered arm-twisting in Austin, whistleblower suits, a firing and allegations of criminality? How would Mary Poss handle a situation in which she had made a serious mistake?

Or is that what this has become?

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