Editors note: A new version of this article was posted at 6 p.m. Monday containing information not included in the original version. For a copy of the complaint, view the link below this article.

The group behind the petition efforts to recall Mayor John Cook and to put a referendum before voters to take the stormwater utility away from the Public Service Board is violating the Texas Election Code, city Rep. Susie Byrd said.

Byrd said she is mailing a complaint the Texas Ethics Commission today alleging that the loosely organized group has failed to comply with state law that requires naming a campaign treasurer, forming a political committee and reporting its contributions and expenditures.

She also lodged a complaint with the city's Ethics Review Board.

The complaints, regardless of anything the Ethics Commission or city board may do, will have no effect on the referendum that has already won its place on the ballot.

If voters approve the referendum in the may 9 city elections, it will put City Council in charge of the stormwater utility, effective immediately.

The Election Code requires those steps if a group of individuals working in concert in support of a ballot measure spends or receives more than $500 in cash or in kind.

Last month, the El Paso Association of Builders let the leaders of the petition drive set up a petition-gathering booth for two weekend days at the Jan. 9-11 Spring Home Show at the El Paso Civic Center, where the starting price for a booths was $1,100.

The association’s executive director, Ray Adauto, said he simply invited the group, which had set up tables outside the Civic Center, to bring their signs and petitions inside and use an area reserved by the association.

“There is no issue, and that’s the problem,” he said. “For some reason, someone is trying to raise an issue that doesn’t exist. It’s a freedom under the Constitution to assemble and petition. That’s an individual’s right.

“It’s no secret that the Builders Association has a long standing opposition to the stormwater tax, and while someone tries to make an issue of this, it’s nothing more than good community.”

As for letting the petition organizers set up inside the Civic Center, Adauto said, the area they occupied had “no retail value for us.”

“I had everyone in there from young designers to the Red Cross, the Agriculture Department and the Girl Scouts,” he said. “The El Paso Association of Builders was in that booth. It was a gathering point.”

But Byrd contends the space had value because other organizations had to pay to set up their booths inside during the three-day event.

Who paid the Austin lawyer?

She also recalled a statement by Gerald Miller that when he submitted the petitions to the city clerk's office that the group also had an Austin lawyer going over the signatures to ensure they were legitimate because the group had "a trust issue" with City Hall.

"Who was paying the lawyer?" she asked.

She said the Concerned Taxpayers of El Paso has been a working organization that has used that name in forms filed with the city clerk and on web sites during seven months of petition campaigns.

“They’re accepting contributions and expending funds,” Byrd said. “And in the same way they believe the PSB should be transparent and accountable, they need to do the same.

“People need to know who is funding their effort and where their money is coming from. I don’t think it’s a big campaign, but they have resources and when businesses donate their services, we need to know who they are.”

She said the same group of individuals – Gerald Miller, Lee Urias, Jerry Thiedt, Gary Hoff and others – was involved in the unsuccessful petition drive to recall Mayor John Cook, the first petition drive to place the stormwater initiative before City Council and the second petition drive to put the stormwater measure on the May 9 ballot.

Earlier this month, Urias said he understood the group needed to identify itself and name a campaign treasurer. But last week, Urias said he wasn’t sure it was necessary after all.

Referring to information he had gotten from an Austin blog known as the Burnt Orange Report, Urias said, “We don’t need to do an organization.

“You don’t have to declare any money for a measure. I looked it up. The Ethics Commission states that if it’s for a measure, we don’t have to file.”

The group initially identified themselves as the Concerned Taxpayers of El Paso but whether they have been working as a organized group is a question that the leaders have disagreed about among themselves and in public.

“We’re going to file with the Texas Ethic Commission,” Urias told Newspaper Tree on Jan. 14 after he, Miller and Thiedt filed petitions with nearly 5,000 signatures to have to stormwater utility issue placed on the May 9 ballot.

“I know we have to file with the Texas Ethics Commission,” Urias said. “Then we can accept donations. We haven’t accepted any money yet.

“All the time and effort has been by us. It’s from our offices, our personal inventory. We’re actually doing it like individuals and paid for things ourselves … out of our pockets.”

Miller has objected to the use of the Concerned Taxpayers of El Paso name to identify the group and insisted that the signature gathering was not the work of an organized group but of individuals working on the same objective but not in concert.

But that was the name Urias used on May 19 when he announced that a group of individuals had met and decided to start a petition to recall Mayor John Cook.

Urias also said they would be organizing the Businessmen’s Association Political Action Committee to raise money for the petition effort and to help Ray Gilbert with the expenses for a lawsuit he had filed challenging the legality of the stormwater utility. The businessmen’s PAC wasn’t mentioned after that.

But they used the Concerned Taxpayers name in June when they filed notice with the city clerk that they would be gathering signatures to put an initiative before City Council to move the storm water utility away from the PSB.

Misdemeanors and corporate campaign contributions

Tim Sorrells, an attorney with the Texas Ethics Commission, said any group of individuals working on a ballot measure or for a candidate are a political committee as defined by state law. The question is when they have to name a treasurer and begin reporting contributions and expenditures.

“A measure means a question or proposal submitted to an election and includes the circulation of a petition to determine if it is to be submitted to an election,” said Sorrells, who is the deputy counsel to the Texas Ethics Commission.

“If you have a group of two people and they have purpose of making expenditures or receiving contributions to circulate a petition, then by definition, they are a political committee,” Sorrells said. “If they exceed $500, that committee has to file the paper work to name a campaign treasurer and campaign finance reports.”

Failure to do so is a civil violation and a Class A misdemeanor.

Byrd in her complaint also raised questions about the legality of Miller's activities.

Miller often said it was he who gathered thousands of signatures in the three petition efforts -- the attempt to put the recall of Mayor Cook on the ballot and the two stormwater petitions.

Miller is also the general manager of El Paso Honda, a corporation that appeared to be paying him while he collected signatures, which could be improper, Byrd states.

"It appears that Mr. Miller's active role and constant role in organizing this effort is part of his employment with El Paso Honda," she wrote in her complaint. "It is because of the stormwater fees assessed on El Paso Honda that Mr. Miller became involved.

"If the stormwater utility is moved to the city, and the group is successful in lowering the fees as they have indicated is one of their goals, then El Paso Honda would benefit financially from this effort."

She cites a provision of the Election Code that states, "A corporation or labor organization may not make a political contribution or political expenditure in connection with a recall election, including the circulation and submission of a petition to call an election."

While a corporation or labor union can make campaign contributions in connection with an election on a measure, it can only do so by contributing to "a political committee for supporting or opposing measures exclusively."

So, Byrd said in her complaint, "If he is being paid by his employer for his participation in this effort, as it appears he is, it has not been reported and would violate several portions of the code dealing with corporate contributions for recall elections and measures."

Newspaper Tree called Miller's office and cell phone and left messages regarding this issue, but the calls were not returned.

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To reach David Crowder, write to dcrowder@epmediagroup.com or call (915) 351-0605, ext. 30

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