Lane, Leonard can keep seats on Tarrant water board, attorney says

Posted Tuesday, Aug. 19, 2014  comments  Print Reprints

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An attorney hired by the Tarrant Regional Water District said Tuesday that board members Marty Leonard and Jim Lane can continue to serve without any action needed by the full board.

The water district moved its board election from 2012 to 2013 after the Legislature changed the law allowing entities to change to the May election date. Leonard’s seats were originally scheduled to expire in May 2014, but the board voted to move that election to May 2015.

Ross Fischer, former chairman of the Texas Ethics Commission, said Tuesday that after studying the Texas Election Code and Water Code he determined no vacancy had occurred.

“You don’t have the authority to declare a vacancy,” Fischer said. Only a court can do so, he said.

Fisher also referred to an April 2012 pre-clearance letter from the Department of Justice that permitted the water district to move the election of three board members from 2012 to 2013.

Both the U.S. 5th Circuit Court of Appeals and the Texas Supreme Court declined to compel the water district to call a May 2014 election as sought by two separate lawsuits.

But an earlier ruling by U.S. District Judge Reed O’Connor appeared to suggest, citing a section of the state Water Code, that the water district's board would have to appoint two board members to serve until the May 2015 elections. Fisher said O’Connor’s ruling did not take into account provisions in the Texas Election Code.

Board member Mary Kelleher did not attend the last four board meetings, arguing that there was no quorum and Leonard and Lane had no authority to serve.

But Fischer said Lane and Leonard had the authority to vote, and none of the board’s actions was tainted by their serving on the board.

At Tuesday’s meeting, Fischer also briefed the board on campaign finance reports dating back to 2010. Most of the issues were minor, but Fischer said John Basham, a former candidate for the TRWD board, has not filed nine required campaign finance reports since 2010. Also, Texans for Government Transparency, a 501-4c of which Basham is president, has also failed to file reports with the Texas Ethics Commission.

Even though Basham declared on his Facebook page in March that he was no longer a candidate for the water board, Fischer said Basham remains a candidate until he files a final campaign finance report.

“He is under a legal obligation to file campaign finance reports and hasn’t done so,” Fisher said.

Kelleher, who was censured by the board in April, filed a campaign finance report in July 2013 that did not contain a notary stamp, which could possibly lead to an accustaion that she tampered with a government record. Fischer also reported that Monty Bennett, who is suing the water district, paid for Kelleher’s plane ticket to New Orleans to attend oral arguments in one of the election lawsuits before the 5th Circuit. It is not clear whether that constitutes a violation, Fischer said.

“It really boils down to whether Monty Bennett traveled with her,” Fischer said.

If they traveled together, it is not a violation. If they traveled separately, it could be one.

“If a proper investigation authority wanted to investigate, that is how you would get to the bottom of it,” Fischer said. “Generally, there is a prohibition from a board member receiving any benefits from someone who is suing an entity.”

Fischer said an individual or another candidate could take a complaint to the Tarrant County district attorney’s office.

Following the presentation, the board agreed to discuss Fischer’s report at its September board meeting.

Kelleher questioned whether other board members received as much scrutiny as she did.

“Was everyone else looked at or was I just special?’ Kelleher said.

At the end of the meeting, Kelleher requested an agenda item be placed on the September meeting asking for water board General Manager Jim Oliver’s resignation.

She didn’t get a second from the board.

“Thirty years, I think we need some new blood,” Kelleher said.

On his Facebook page, Basham accused the water district of issuing its findings before asking board members to correct their reports.

“In short, the TRWD is sending a message: if you support John Basham or stand with him against us, we wil sue you or try to criminally charge you,” Basham wrote. “Hey wait! Isn't this same thing happening in Austin to Rick Perry? Welcome to The People’s Republic Of TRWD, where the powerful elite will ruin your name if you disagree with them.”

Bill Hanna, 817-390-7698


Twitter: @fwhanna

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