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TRWD attorney says Lane, Leonard can keep seats on boardAugust 19, 2014
By Marice Richter
Tarrant Regional Water District board members Jim Lane and Marty Leonard will continue serving in their roles without appointment until next year’s board election.
Austin attorney Ross Fischer, special counsel to the water district and a former chairman of the Texas Ethics Commission, said the expired terms of Lane and Leonard do not meet the narrow conditions -- such as death or resignation -- of a vacancy defined by state election law and the Texas Water Code.
“You don’t have the authority to declare a vacancy,” Fischer told the board at a meeting on Tuesday. “Only a court can do so.”
Board members accepted the advice and moved forward with business, putting to rest the friction and legal wrangling of the last few months over the terms of Lane and Leonard.
Elected in 2010, the two board members completed their terms in May and would have had to face re-election if the Texas Legislature had not moved the TRWD board election from even to odd years.
The legislation, sponsored by Republican State Rep. Charlie Geren of Fort Worth, postponed the election to May 2015 but did not address the expiring terms of Lane and Leonard, a situation that resulted in state and federal lawsuits contesting the legality of the move.
The suits, which were appealed to the U.S. 5th Circuit Court of Appeals in New Orleans and the Texas Supreme Court, ending with rulings against a 2014 election.
However, Fort Worth district court judge Reed O’Connor’s ruling in the federal lawsuit determined that the two terms ended in May and that appointment was the appropriate remedy to fill the vacancies.
After analyzing election laws and the water code, Fischer said the judge erred in relying on old case law in advising appointment.
In the previous election cycle, the TRWD election was moved from 2012 to 2013, extending the terms of three board members. Fischer said the water district received pre-clearance from the U.S. Department of Justice to move the election.
He said inquires were made about moving this year’s election but pre-clearance is no longer required under the Voting Rights Act.
Board member Mary Kelleher attended Tuesday’s meeting after skipping the past three. She abstained from voting Tuesday because the board lacked a quorum since Lane and Leonard’s terms had expired.
“By allowing unqualified (unelected or un-appointed) people to vote and participate in executive sessions, the remaining board members could be violating the law and are defying the public trust,” she previously told the Fort Worth Business Press.
Fischer also presented a report to the board on campaign finance filings, including some irregularities.
He cited late finance report filings by several board members but pointed out that the most significant violations included possible tampering of an official record by Kelleher, who filed a report that appeared irregular and did not include a notary stamp.
The report also cites a possible ethics violation by Kelleher in accepting a plane ticket to New Orleans for a court hearing from wealthy Dallas businessman Monty Bennett, who has pending lawsuits against the TRWD.
Fischer said the trip could be an ethics violation under certain circumstances, which remain unclear.
The report also cites John Basham, an unsuccessful candidate for the water board in 2010 and 2013, for failing to file nine campaign finance reports required of candidates and failure to close out his candidacy with a final finance report.
Basham also failed to file financial reports for Texans for Government Transparency, a 501-4c corporation that is involved in campaign fundraising.
The board agreed to discuss the findings at next month’s meeting.
Fischer said the next move would be for the Tarrant County District Attorney’s office to press charges or an individual to file a lawsuit. Penalties could range from a Class C misdemeanor to a third-degree felony.
On his Facebook page, Basham lashed out at the water district for failing to give him an opportunity to address “paperwork errors” before taking the issue public.
“in short, the TRWD is sending a message: if you support John Basham or stand with him against us, we will sue you or try to criminally charge you,” said Basham, an outspoken critic of the TRWD, who called the report a “trumped up set of issues.”
Kelleher did not respond to the allegations but requested an item to be placed on next month’s agenda to pursue the resignation of General Manager Jim Oliver. None of the other board members agreed to add the agenda item so it will not be considered.
In a statement, Kelleher said that under Oliver’s 30-year administration, water rates has increased and the district has strayed from its mission of providing raw water and flood control protection into economic and land development.
“The last couple of decades under Jim Oliver’s management have been riddled with conflict and controversy,” she said in the statement. “General Manager Jim Oliver is failing in his mission and board is failing its constituents and customers by allowing Jim Oliver to continue as general manager for TRWD.”
She also accused Oliver of unprofessional and inappropriate behavior.