CITY OF AUSTIN ETHICS REVIEW COMMISSION
MARK WALTERS,
COMPLAINANT
v.
AUSTIN CITY COUNCIL MEMBER
DON ZIMMERMAN,
RESPONDENT

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Complaint No. 20150727

ORDER ON FINAL HEARING

I. PROCEDURAL HISTORY
On July 27, 2015, Mark Walters (“Complainant”) submitted to the Austin City Clerk a
Sworn Complaint (“the Complaint”) against Council Member Don Zimmerman (“Respondent”).
The City Clerk sent a copy of the Complaint and a notice of filing to the City Attorney, the
Ethics Review Commission (“the Commission”), the Complainant, and the Respondent.
On September 10, 2015, Commission Executive Staff Liaison and City of Austin
Assistant City Attorney Cynthia Tom (“Tom”) issued a Second Revised Notice of Preliminary
Hearing, setting a Preliminary Hearing of the Commission for September 28, 2015, and advising
the Respondent and Complainant of procedures for the Preliminary Hearing.
On September 28, 2015, the Commission conducted a Preliminary Hearing. In its Order
on Preliminary Hearing, the Commission determined that reasonable grounds existed to believe
that a violation of Section 2-2-25 (Annual Reconciliation Filing by Candidates and Campaign
Committees) and 2-2-42 (Annual Reconciliation of Campaign Debt) of the Austin City Code had

City of Austin
Ethics Review Commission
ORDER ON FINAL HEARING – PAGE 1 OF 6

 occurred as alleged in the Complaint as a result of actions or omissions of Respondent. The
Commission set this matter for a Final Hearing to be held on October 13, 2015.
On October 6, 2015, Tom issued a Request for Information and Notice of Final Hearing
for October 13, 2015. The October 6 Request and Notice advised Complainant and Respondent
of procedures for the Final Hearing. Pursuant to Section 2-7-46 of the Austin City Code, the
October 6 Request and Notice made a request to the Respondent for documentary evidence and
requested the presence of both Complainant and Respondent at the Final Hearing. The October 6
Request and Notice directed that any evidence to be submitted by the Complainant and
Respondent, including the documentary evidence requested from Respondent, be submitted no
later than 5:00 p.m. October 9, 2015. On behalf of the Commission, the City of Austin Law
Department also requested certain documentary evidence from the City Clerk.
On October 9, 2015, the agenda for the October 13, 2015, meeting of the Commission
and Final Hearing in this matter was timely posted.
Prior to the October 13 Final Hearing, the City responded to the Request for Information
by providing responsive documents to the Commission.

Also prior to the Final Hearing

Respondent submitted a number of exhibits. On the date of the Final Hearing Respondent
provided the documentary evidence requested by the Commission.

II. FINDINGS OF FACT
1. Respondent is an Austin City Council Member, District 6, and held that same position at all
times relevant to the Complaint.
2. Complainant alleges that Respondent violated Sections 2-2-25 (Annual Reconciliation Filing

City of Austin
Ethics Review Commission
ORDER ON FINAL HEARING – PAGE 2 OF 6

 by Candidates and Campaign Committees) and 2-2-42 (Annual Reconciliation of Campaign
Debt), Austin City Code, on January 15, 2015, by failing to include information required by
those sections with his January 15, 2015, campaign finance report.
3. As of October 13, 2015, the documents required by those sections have not been filed by
Respondent.
4. Complainant and Respondent were each afforded an opportunity to appear at the Final
Hearing in accordance with Chapter 2-7 of the Austin City Code and the Rules of the
Commission.

Complainant appeared in person.

Respondent's attorney appeared at the

hearing, but Respondent was not present, although the Commission requested his presence.
5. At the Final Hearing, all exhibits pre-filed by Respondent, exhibits previously filed by
Complainant, and the documents tendered by the City Clerk, were accepted into the record.
6. The Commission also voted to accept into the record an exhibit proffered by Respondent
after the deadline that was responsive to the October 6 Request and Notice, but declined to
accept another exhibit proffered by Respondent's attorney.
7. At the Final Hearing, both the Complainant and Respondent’s attorney made verbal
statements and responded to questions from the Commission.
8. Respondent's attorney acknowledged that Respondent did not file the forms as alleged in the
Complaint.
9. Respondent's attorney averred that Section 2-2-5 of the Austin City Code requires proof that
Respondent "knowingly" violated the ordinance, that the wording in the ordinances at issue is
vague, and that Respondent did not knowingly violate the ordinances at issue.

City of Austin
Ethics Review Commission
ORDER ON FINAL HEARING – PAGE 3 OF 6

 III. CONCLUSIONS OF LAW
1.

The October 13, 2015, meeting of the Commission and the Final Hearing were properly
noticed in accordance with Chapter 2-7 of the Austin City Code, the Ethics and Financial
Disclosure Ordinance, and the Texas Open Meetings Act.

2.

The Commission has jurisdiction over complaints alleging violations of Chapter 2-2 of
the Austin City Code (The Austin Fair Campaign Chapter), Chapter 4-8 of the Austin
City Code (Regulation of Lobbyists), Article III, Section 8 of the Austin City Charter,
(Limits on Campaign Contributions and Expenditures), Chapter 2-7 of the Austin City
Code (Ethics and Financial Disclosure), and Section 2-1-24 of the Austin City Code
(Conflict of Interest and Recusal).

3.

The Complaint was filed with the City Clerk, was sworn to by Complainant, and
identified the provisions of the Austin City Code alleged to have been violated, as
required by Section 2-7-41 of the Austin City Code.

4.

The Complaint alleges a violation of Section 2-2-25 of the Austin City Code (Annual
Reconciliation Filing by Candidates and Campaign Committees) which provides:
(A) A candidate, officeholder, or campaign committee filing a January 15
year-end contribution and expenditure report shall provide the following
information for the previous calendar year for each checking, savings, or
other financial institution account:
(1) name of the financial institution and type of account;
(2) a listing of date, payee, and amount of checks issued on that
account that have not cleared by December 31;
(3) a listing of checks received as contributions and deposited, but
dishonored by the contributor's financial institution;
(4) all interest or dividends earned;
(5) all deposits and withdrawals not disclosed on a filed
contribution and expenditure report; and

City of Austin
Ethics Review Commission
ORDER ON FINAL HEARING – PAGE 4 OF 6

 (6) the beginning and ending balance.
(B) A candidate, officeholder, or campaign committee filing a January 15
year-end contribution and expenditure report shall file a listing of all
checks identified by date of receipt, contributor, and amount, received by
December 31 but not deposited into any account. Checks received by the
candidate, officeholder, or campaign committee must be disclosed whether
or not they have been "accepted" within the definition of the Texas
Election Code.
5.

The complaint also alleges a violation of Section 2-2-42 of the Austin City Code (Annual
Reconciliation of Campaign Debt) which provides:
An officeholder must include in the reconciliation filed with his or her
annual January 15 contribution and expenditure report the following
information for each calendar year:
(A) campaign debt in existence as of the first day of each calendar
year;
(B) campaign debt in existence as of the last day of each calendar
year;
(C) in addition, the officeholder shall report the following
information on all campaign debt existing as of December 31 of
the reporting year:
(1) for loans and other debt evidenced by a note, the name
of the creditor, the principal amount owed, the interest rate,
and the date of maturity;
(2) for all other campaign debts, the name of the creditor
and the principal amount owed; and
(3) debts under $50 may be aggregated and reported as a
miscellaneous category.

6.

Under Section 2-7-45 of the Austin City Code, the issue to be considered by the
Commission at a Final Hearing is whether a violation of the cited section of the Austin
City Code has occurred. The Commission shall make its final determination based on a
preponderance of the credible evidence in the record.

City of Austin
Ethics Review Commission
ORDER ON FINAL HEARING – PAGE 5 OF 6

 7.

The Commission determined that while Section 2-2-5 of the Austin City Code may be
applicable to the criminal prosecution of the ordinances at issue, it was not applicable to a
sanction under Section 2-7-49 of the Austin City Code.

8.

As alleged in the Complaint, the Respondent did not provide with his January 15, 2015,
campaign finance report filed with the City Clerk the information required by Sections 22-25 and 2-2-42 of the Austin City Code.

IV. DETERMINATIONS OF
THE ETHICS REVIEW COMMISSION
1.

The Commission determines that Respondent violated Sections 2-2-25 and 2-2-42 of the
Austin City Code, provisions within the jurisdiction of the Commission, as alleged in the
Complaint by failing to provide the information required by those sections.

2.

The Commission will not refer the Complaint to the City Attorney for prosecution.

3.

The Commission determines that this violation was committed through disregard of
Chapter 2-2 of the Austin City Code.

4.

The Commission determines that the appropriate sanction for Respondent’s violation is a
Reprimand under Section 2-7-49 of the Austin City Code.

5.

The Commission directs the Respondent to correct the report at issue to provide the
information required by Sections 2-2-25 and 2-2-42 of the Austin City Code.

ORDERED as of the 13th day of October, 2015.

________________________________
Commission Member Dennis Speight

City of Austin
Ethics Review Commission
ORDER ON FINAL HEARING – PAGE 6 OF 6