Travis County DA Rosemary Lehmberg
Travis County DA Rosemary Lehmberg (Handout photo)

First there was her drunken driving arrest, then a conviction and jail time. Next, Travis County District Attorney Rosemary Lehmberg won a civil lawsuit to keep her elected office. Meanwhile, a separate criminal investigation found that her bad behavior in jail didn’t rise to the level of a crime. One would think that Lehmberg’s woes would be over. Not so.

Austin solo Kerry O’Brien, the same man who initiated the removal suit against Lehmberg, filed an ethics complaint against her on Aug. 8. The Texas Ethics Commission has five days to determine to accept or reject it. O’Brien alleged an issue with her campaign finance reports involving more than $227,000 in attorney fees she paid to Austin firm Richards, Rodriguez & Skeith, which defended her against the civil removal suit. She won and remained the district attorney.

O’Brien wrote in an email, “When someone pays almost a quarter of a million dollars on the local D.A.’s behalf, we should know who did so—regardless of what the law says. But the law says she is required to report the contributions to her campaign.”

Lehmberg said, “I reported the expenses correctly, and I’m certain the ethics commission will agree with that. … I didn’t violate any laws, and I reported it correctly.”

Dan Richards of Richards, Rodriguez & Skeith didn’t return a call seeking comment.

“By law, we cannot confirm or deny the existence of a complaint,” said Natalia Luna Ashley, executive director of the Texas Ethics Commission.

Fees in Question

O’Brien emailed the Aug. 8 ethics complaints to Texas Lawyer.

He alleged in the complaint that Lehmberg filed a Jan. 15 campaign finance report that covered July 1, 2013, to Dec. 31, 2013.

“This is the period in which she would have incurred significant legal expenses in her defense in the removal lawsuit,” wrote O’Brien in his complaint.

He alleged in the complaint, among other things, that one $227,885 expenditure went to Richards, Rodriguez & Skeith for “fees for defense of office.”

He alleged there is “no record” of where that money came from. She reported zero contributions on the Jan. 15 report. Before the time period of the Jan. 15 report, Lehmberg reported that she had $4,108 in maintained contributions.

O’Brien alleged that Lehmberg violated the Texas Election Code’s requirements to report political contributions and keep a record of reportable activity.

But Lehmberg said that her campaign finance report noted that the $227,885 attorney fee expenditure was only “partially paid.” The report lists payments that Lehmberg made “out of pocket.”

Austin election-law solo Ed Shack, who consulted with Lehmberg on her report, explained that office holders must report expenditures when they are “incurred,” not when they are paid.

“That’s a common misunderstanding,” he said.

The report shows that Lehmberg made three payments on the attorney fee bill that total $16,060, which means she still owes $211,825.

Shack said about the payments, “It’s from her own personal funds—still a political expenditure—and she reported it. But it’s not from campaign funds—not from campaign contributions.”

Lehmberg said she plans to raise contributions to help pay the remainder of her attorney fees.

Speaking generally, Ashley said that, when someone files an ethics complaint, the commission determines whether it contains minimum requirements. If it does, an ethics commission lawyer gathers information, and the public official responds.

If the case moves forward, the ethics commission considers it and either dismisses the complaint or offers a resolution, Ashley explained. If a public official rejects the resolution, the case moves to a formal hearing. If a public official still rejects the outcome, it can move to district court.

Shack said about the complaint, “I expect this will be dismissed. I don’t see any basis for it.”