“People’s Judge” Keough shows strong leadership before House County Affairs Committee, urges passage of JD Lambright Local Government Ethics Reform Act, even in face of one interest group’s misunderstanding

“People’s Judge” Keough shows strong leadership before House County Affairs Committee, urges passage of JD Lambright Local Government Ethics Reform Act, even in face of one interest group’s misunderstanding

Image: Montgomery County Judge Mark Keough, the “People’s Judge,” testified before the House Committee on County Affairs on Thursday, April 19, 2019, in favor of the JD Lambright Local Government Ethics Reform Act.

Austin and Conroe, April 19 – Montgomery County Judge Mark Keough, the “People’s Judge,” testified in favor of the JD Lambright Local Government Ethics Reform Act before the Texas House of Representatives Committee on County Affairs on Thursday, April 18, 2019. Keough’s testimony answered many questions about the legislation, which gives counties the option of establishing a county ethics code – applicable only to county employees – if the commissioners court or the voters choose to do so.

The statute tracks the language of the ethics framework which presently only exists in El Paso County and which has enjoyed enormous success there. The statute merely removes the “bracket” which restricts it only to El Paso and makes the ethics framework available in every county. It is not mandatory that counties adopt the ethics framework.

State Representative Mayes Middleton, Republican of Houston, is the House sponsor of the legislation and presented the legislation to the Committee.

One special interest group has begun to oppose the JD Lambright Local Government Ethics Reform Act, because that group is in a lengthy legal war with the Texas Ethics Commission, the Austin regulatory agency which specifically regulates compliance with Texas campaign finance laws and, by law, is applicable to all citizens who engage in political advertising. The Texas Ethics Commission framework has nothing whatsoever to do with county ethics commissions, since the Lambright Law clearly only applies to “county public servants” which the statute narrowly defines. “County public servants” do not include even vendors or lobbyists under the statute as currently written.

The interest group has also complained that the legislation, Senate Bill 710, which passed the Texas Senate on a unanimous 30 to 0 vote, would set up “secret proceedings” which could discipline private individuals. That complaint is wrong on two counts. First, Senate Bill 710 only applies to “county public servants” as Section 161.002 currently defines them quite carefully only to include:

“County public servant” means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for or assumed the duties of office:

(A) a county officer or county employee;

(B) a person appointed by the commissioners court or a county officer to a position on one of the following, whether the position is compensated or not:

(i) an authority, board, bureau, commission, committee, council, department, district, division, or office of the county; or

(ii) a multi-jurisdictional board;

(C) an attorney at law or notary public when participating in the performance of a governmental function;

(D) a candidate for nomination or election to an elected county office; or

(E) a person who is performing a governmental function under a claim of right although the person is not legally qualified or authorized to do so.

Second, the contention that the Lambright law would establish “secret proceedings” is completely incorrect. Under Sections 161.158 to 161.163, after someone files a complaint against a “county public servant,” there is a preliminary hearing to determine whether there is any merit to the complaint. Those preliminary hearings are confidential for the purpose of protecting the person against whom the complaint is pending. If there is no merit, the county ethics commission would dismiss the complaint, very similar to grand jury proceedings which are confidential. If there is merit to the complaint, however, the formal hearing on the complaint would be open and not secretive at all, as Section 161.173 of the statute.

Finally, the special interest group raised the concern that citizens are not capable of writing an ethics code. He said, “I think it’s dangerous to have private citizens appointed to a body that then writes an ethics code.” [Judge Keough’s response to that comment appears in bold italics below.] It’s surprising, to say the least, that the special interest group apparently believes that citizens should not be involved in the process of county government, when, in fact, citizens are at the very top of the organizational chart of government in the American form of government.

Finally, the special interest group raised the concern that citizens are not capable of writing an ethics code. He said, “I think it’s dangerous to have private citizens appointed to a body that then writes an ethics code.” [Judge Keough’s response to that comment appears in bold italics below.] It’s surprising, to say the least, that the special interest group apparently believes that citizens should not be involved in the process of county government, when, in fact, citizens are at the very top of the organizational chart of government in the American form of government.

Keough addressed many of these issues in his formal remarks to the County Affairs Committee after the representative of the special interest group opposing the ethics legislation had spoken. One additional witness testified before Keough and before the special interest group representative. The additional witness was a “private citizen” who represented “nobody” and merely noted that the JD Lambright Local Government Ethics Reform Act would make it possible to “end backroom deals” and wouldn’t even apply to vendors or lobbyists, although the bill does apply to the “county public servants” who might engage in unethical conduct with vendors or lobbyists.

Keough’s full testimony follows:

“My name is Mark Keough and I’m the County Judge of Montgomery County. It’s good to see you all again. Those whom I don’t know; it’s good to see you all as well. I appreciate the opportunity to do this.

“I come here representing the Commissioners Court of Montgomery County where we voted unanimously to recommend passage of this opportunity to amend a current law, Chapter 161 of the Texas Local Government Code, in certain counties. All we’re really doing is taking away the applicability of Section 161.001. If you go all the way, and there’s three hundred and something sections, this Chapter applies currently only to one county. It was designed for that. I thought it was interesting.

“I’m not interested in reinventing the wheel nor are the people in our County. We have looked at this particular set of rules established on behalf of El Paso County. I spoke with the Auditor of El Paso County who says it’s awesome, that it’s a good bill, and that he had no problem with me sharing that with you all, as a result of his work for a number of years in El Paso County. That being said, it’s been said here to talk about the bar association, Human Resources, civil service commission, dispute resolution center, that commissioners courts shall designate the entities described by these that may submit committee members. It doesn’t say they have to. It says they may; it’s right there.

“Some of the things in this bill talk about ‘shall.’ Most of them have to do with, once you determine that this is what you want to do, these are things you shall do. But the whole bill is predicated on ‘may.’ Nobody is making anyone do this.

“For us currently in Montgomery County, we saw it. We currently have an ethics process. The fact of the matter is that it doesn’t have any teeth in it. That’s one of the reasons why I ran for office and left the House. There’s an opportunity for us here in a county that may wish to take advantage of this, but they don’t have to. It is truly a permissive bill. Senator Creighton presented it that way. Additionally, to reiterate that, the commissioners court ‘may adopt’ or use as a guide any ethics rule of the United States, the State, or any political subdivision to extend the law for the purpose of this chapter. So we can kind of build it.

“One of the problems is that people will just go ahead and do what they want and then take fines out of campaign funds. But this is a civil penalty where we’re talking about personal liability. There are no other changes. The max is $5,000. But you don’t even have to do it. But the other side is: why would you not? If you put this thing in place, these are things that will have an impact on what we’re trying to do. We have definitions for each of the elements.

“This does not drag in any personal citizens, and it’s clearly defined. It goes through definitions in this chapter. Commission. Commissioner staff. Government Code. County Affiliate…talking about vendors with the county who are connected with the county. County Public Servants. It’s not some individual out on the street.

This idea that the citizens aren’t smart enough to deal with it, you all were citizens before you were in the House of Representatives. I was a citizen and a Representative before I became a Judge. Everyone of us here is a citizen. And our citizens are smarter than you think they are. I believe this. In our county, what we’ve found is that when we turn things over to the people, things get done. We hear about transparency all the time. We have conflicts of interest that will blow your mind that there’s no law against. So that’s all we’re trying to do. That’s my story.

“Members, I urge that you pass this bill.”

The House County Affairs Committee will likely consider the JD Lambright Local Government Ethics Reform Act, Senate Bill 710, this coming week.

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