Austin candidates say bad advice from city made them miss out on election funds

Sarah Asch; Austin American-Statesman

Despite following guidance from the Austin city clerk's office, two Austin City Council candidates will miss out on thousands of dollars they had sought from a city fund set up to help candidates pay for election activities

José Velásquez, who is running in District 3, and Ryan Alter, who is running in District 5, filed a lawsuit against the city Monday asking for a restraining order to prevent the city from distributing the funds, which they say they are entitled to receive. 

The money is held in the city's Fair Campaign Finance Fund, which was set up in 2008 for candidates who sign a pledge to limit the amount of campaign contributions they accept from special interests groups or from outside the city.

The fund this year has more than $66,000 in it, which will be split among eligible candidates running in the upcoming Dec. 13 City Council runoff elections.

Supports hold signs for City Council candidate Daniela Silva on Nov. 8. Silva is one of two City Council candidates who will receive money from a public election fund ahead of the Dec. 13 runoff election. Mikala Compton/ American-Statesman

Judge Cleve Doty in Travis County District Court denied the restraining order, and city officials said the money in the campaign fund would be split between the two candidates who were ruled eligible: Daniela Silva, who is running against Velásquez in the District 3 runoff, and Linda Guerrero, who is running against Zohaib Qadri in the District 9 runoff.

Jose Velasquez is running for a city on Austin City Council in District 3.  Contributed Photo.
 

2022; Austin City Council District 5 candidate Ryan Alter.  Courtesy Photo.
 

Alter, who will face Stephanie Bazan in the Dec. 13 runoff election in District 5, said he signed the fair campaign contract over the summer when he filed for an official place on the ballot. He said he did so because he was following guidance from the office of City Clerk Myrna Rios, which was published as part of a candidate info packet on April 1. 

“The city code tells you when you need to sign the voluntary campaign contract. The code says either 30 days after you become a candidate under the election code, or when you file for office,” Alter said. “The guidance says because it's difficult to calculate when a candidate becomes a candidate under the election code, that they are going to treat that section to mean when you file your application to be on the ballot. That’s the deadline they established.”

However, when the city clerk’s office sent notice to the candidates who were eligible for public runoff funding, Alter was told he was not eligible because he hadn’t signed the contract in time.

“(Silva and Guerrero) are eligible to receive equal shares of the $66,126.54 Austin Fair Campaign Finance Fund. No other runoff candidates filed timely campaign contracts so no other candidates are eligible to receive funds,” city spokesperson Andy Tate wrote in an emailed statement on Monday. "We've received the lawsuit and the city prevailed this morning in the Temporary Restraining Order hearing. The city will be following city code as it relates to the distribution of the Austin Fair Campaign Finance Fund."

The city did not comment on the role the clerk’s guidance played in the legal dispute. 

Alter, who is a lawyer and represented himself and Velásquez in the lawsuit, said the judge's decision to rule against them was based on when and how the law allows a city to be sued.

“The judge did say he understood where we're coming from, and this is kind of an unfortunate issue, but at the end of the day it was less about our argument than it was about the city having what's called sovereign immunity,” Alter said. “The argument was that you can’t sue the city to enforce an interpretation of their code since that doesn’t fall within an explicit exception to the rule that you can’t sue a municipality... so even if we were right, we didn't have the means to sue the city and enforce their guidance.”

Austin attorney Bill Aleshire represented the candidates who would have been at a disadvantage if Alter and Velásquez prevailed — including Guerrero and Silva. He said the Texas Election Code is clear that you become a candidate when you file for a place on the ballot, when you submit a campaign treasurer designation form or when you accept your first campaign contribution or make a campaign expenditure. 

Given this, every candidate should have filed the contract form within 30 days of whichever one of those things happened first in their campaign, Aleshire said.

The city clerk made a mistake with its April statement that the deadline to sign the contract was being extended, Aleshire said.

"The city clerk has no such authority and that's exactly what the judge said today,” he said. “Because she had no authority to extend the deadline, no party had any legal basis on which to rely on that. They should have relied on the law.”

The city campaign funding for candidates comes from fees that lobbyists pay to lobby the city, Aleshire said. Now that the Austin City Council has certified the candidates who will be in the runoff, the city attorney said in court that the funding could be distributed to candidates as early as Tuesday, Aleshire said. 

Alter said he and Velásquez are not planning to continue litigation at a higher court. 

“I think it's unfortunate,” Alter said. “But (my campaign) is going to carry on and continue to fight for District 5.”