Unlike the local media who has forgotten to do what is called a "follow up story," I called Representative Ann Lilly's attorney, Mark Walker, about the Texas Ethics Complaint that was filed by Lyda Ness-Garcia. Low and behold her had a response for me.
He created a document that tells the story of how all of this went down. I think the quote from his write-up that sums up the idiocy of Ness is:
Later in the afternoon of May 18, in response to an inquiry of a response date for a reply to the complaint, a lawyer with the TEC called and said that none was due, because the complaint was not accepted and did not allege a violation.
Yes my friends - Ness failed to actually file a complaint that was usable in any way, shape or form to the TEC. There's a reason you haven't seen the complaint - it was all nonsense thrown together at the last minute in order to do a photo-op in front of the press. The press never even asked to see the complaint or the emails. Ness failed to allege that Lilly did anything wrong... wow. So in Ness' own opinion, Lilly did nothing wrong and she believes that so thoroughly that she sent a note to the TEC to confirm it!
I would suggest the news outlets in town read this document carefully and then start crafting apologies to Mrs. Lilly. They could learn a little about how these things work by asking some questions.
If you want your media to act more responsibly when reporting on these issue in the future, make sure you send a link to my blog to them and ask them why they got scooped by an idiot blogger sitting in his mom's basement eating Funions and playing video games.
You can read the document by click this ---> Download TEC_Complaint_Press_Release_3453487_1.
Or you can read it below where I cut and pasted it into the body of this blog. I'm sure Mark Walker would love to talk to anyone in the media who might inquire about Ness' possible TEC fine for submitting a frivolous complaint. Call him at (915) 541-9322. All of you ignored his last press release, maybe you won't ignore this one!
This is good reading and we'll get more into my thoughts later.
Re: Lyda Ness-Garcia Complaint to the Texas Ethics Commission: Whether the Complaint was Frivolous.
The Texas Ethics Commission has rejected Candidate Lyda Ness-Garcia’s complaint against Ann Morgan Lilly to the Texas Ethics Commission, (“TEC”), citing requirements meant to guarantee fairness and due process to all persons involved. The following is an analysis of the complaint, and whether, under the law and the facts, the complaint was frivolous, for which Ann Morgan Lilly may seek compensation from Ms. Lyda Ness-Garcia. In short, the complaint was probably frivolous, to be determined by the Texas Ethics Commission.
- I. The Complainant.
According to the State Bar of Texas (“SBOT”), Ms. Lyda Ness-Garcia (“LNG”) is a May 1997 graduate of the University of Texas School of Law, a perennial top-15 national law school, and was licensed in April, 1998, SBN 90001279. The SBOT website also indicates that she is licensed in the District of Columbia and Pennsylvania. The D.C. Bar website shows “Lyda A. Ness” as an inactive member, who was licensed in April, 2000. The Disciplinary Board of the Supreme Court of Pennsylvania shows Ms. Lyda A. Ness, No. 82282, as an inactive member of the Pennsylvania Bar, having been originally licensed in April 1999. Ms. Ness-Garcia does not appear to be currently licensed in either D.C. or Pennsylvania, contrary to her information published online with the SBOT.
Some of Ms. Ness-Garcia’s online biographies indicate that she attended the nationally-ranked University of Michigan as an undergraduate in the English department, and at some point worked as an assistant El Paso County Attorney. Her LinkedIn page shows that she attended Michigan until 1992, but does not explain what she did before obtaining her law degree six years later. That page also indicated that she has been a solo practitioner since March 2000. The LinkedIn page indicates that she claims to practice in family law, immigration, and criminal law.
We have not found any resumes or biographies of Ms. Ness-Garcia that show her chronological history, or any other employment history. Ms. Ness-Garcia has been licensed to practice law in Texas for 13 years. A brief review of the El Paso County records reflects that she has appeared as counsel in a variety of family and criminal cases, at least.
The conclusion, based on the record, is that Ms. Ness-Garcia is sufficiently trained and experienced to know the need to read and understand the relevant law, codes, and rules, prior to taking actions.
- II. The Complaint.
- A. Ms. Ness-Garcia Sought Publicity Prior to Filing Complaint.
Ms. Ness-Garcia filed with the TEC her sworn complaint on Friday, May 13. Prior to filing the complaint, Ms. Ness-Garcia made a concerted effort to advise the press and give them a preview of her allegations, literally on the eve of the municipal election. On Wednesday afternoon, May 12, Cindy Ramirez, El Paso Times reporter, Maria Garcia, of KVIA, Adrienne Alvarez of KTSM and KDBC, and another reporter all called Ms. Lilly to say that LNG called them and told them that she had filed an ethics complaint with the TEC, along with a police complaint. On Friday, May 13, Ms. Lilly received more calls from the media, including follow-up calls from Ms. Alvarez, along with Mr. Camarena with Telemundo, asking for comment after they were contacted by Ms. Ness-Garcia. Several members of print and television press advised that they were contacted by LNG and told that she was going to or had filed an ethics complaint, apparently before the complaint was filed with TEC. Ms. Ness-Garcia’s media blitz was rewarded by print and television news coverage of her allegations against Ms. Lilly, on the eve of the election.
We did not see a copy of the complaint until we received it via e-mail from TEC late Wednesday morning, May 18. Later in the afternoon of May 18, in response to an inquiry of a response date for a reply to the complaint, a lawyer with the TEC called and said that none was due, because the complaint was not accepted and did not allege a violation. We have not seen a copy of any police report, but we anticipate that it would be based on the same grounds as the ethics complaint.
We have no record that any member of the press did any independent investigation, or conferred with counsel, or even called the TEC about whether the complaint was legal, prior to publishing the subject reports.
We also find no record of Ms. Ness-Garcia calling lawyers with the TEC to determine whether the complaints she wished to make were proper or legal, prior to filing the complaint, even though the TEC lawyers are available to answer all such questions.
- B. The Complaint is Sworn, and Alleged on “Personal Knowledge.”
The TEC complaint form permits a complainant to verify the complaint based either on personal knowledge (“direct personal knowledge”), or upon information and belief. An affidavit based upon information and belief would be executed “if the acts alleged are not within your direct personal knowledge, but are based on reasonable belief.” Ms. Ness-Garcia chose to sign the affidavit based on personal knowledge.
- C. Complainant Ness-Garcia Alleged That E-Mails Violated Tex. Elec. Code 255.003.
In her complaint, Ms. Ness-Garcia specifically alleged that Ms. Lilly violated Section 255.003 of the Texas Election Code, claiming that “[c]urrent city representative (sic) Ann Morgan Lilly has been utilizing city resources, staff & equipment for fundraising purposes.” In support of that allegation, Ms. Ness-Garcia attached to the complaint some 25 documents, all e-mails, 13 of which dated to 2006 and 2007, and none of which were authored by Ms. Lilly. Two e-mails were dated in February 2009, and related to El Paso Days events in Austin. One was dated in July 2009, with no text, another City Information Services e-mail in October, 2010, reminding all City employees of “the rules and regulations pertaining to participation in the political process.” The others included duplicates of the same e-mails in 2011, and one included a staff response that City Representative Lilly would attend an Upper Valley forum, in response to an e-mail invitation. In none of the e-mails did Ms. Lilly solicit any campaign donations or engage in any fundraising. In support of her allegations, Ms. Ness-Garcia relied only upon e-mails between other persons, who sent copies to e-mail accounts of one of the six persons subject to the PIA request. She provided no other affidavits, statements, or records. Ms. Ness-Garcia was not an author of, nor a participant to, any of the subject e-mails, and had no personal knowledge of the events or communications.
- As a Matter of Law, E-Mails Cannot Constitute a Violation of Section 255.003.
As a Texas lawyer with over ten years of experience, Ms. Ness-Garcia should be fully aware of procedural rules and the general rule that the lawyer should not make frivolous allegations. The Texas Disciplinary Rules of Professional Conduct specifically prohibit the making of frivolous claims. Tex. R. Disc. P. 3.01. “A filing or assertion is frivolous if it is made primarily for the purpose of harassing or maliciously injuring a person. It also is frivolous if the lawyer is unable either to make a good faith argument that the action taken is consistent with existing law or that it may be supported by a good faith argument for an extension, modification or reversal of existing law.” Id., comment 2. To avoid a finding that a claim lacks merit or is frivolous, a lawyer should investigate and research the claim before filing it.
The statute that Ms. Ness-Garcia claims that Ms. Lilly violated, Tex. Elec. Code Ann. §255.003 (Vernon Supp. 2010) prohibits the “Unlawful Use of Public Funds for Political Advertising.” In order to determine whether an act the subject of an ethics complaint constitutes “political advertising,” the complainant must look to Tex. Elec. Code Ann. §251.001(16), which does not include e-mails as part of the definition. Further, in the Texas Ethics Commissions rules (available online), the definition of “political advertising” “…does not include a communication made by e-mail.” Tex. Ethics Comm’n R. 20.1(16)(B). Based on the only statute that Ms. Ness-Garcia claims was violated, there exists no possible violation, based on the complainant’s complete reliance on e-mails as the basis for the complaint. A review of the statutes, the definitions, and the Commission Rules, all of which are equally available to the complainant, would have revealed that there existed no basis under the law to file the complaint, prior to filing the complaint.
- E. The Complaint Also Improperly Alleges Conduct the Texas Ethics Commission Cannot Consider, Based on Limitations.
Additionally, regardless of whether the complaints were based on e-mails, most of the communications of which Ms. Ness-Garcia complained were more than two years old, and could not have formed the basis of complaint because any complaints were barred by limitations. The Texas Ethics Commission may not consider an allegation that is outside the applicable statute of limitations. The alleged violation, an allegation that an officer of a political subdivision “knowingly spent or authorized the spending of public funds for political advertising,”would be governed by a two-year statute of limitations,and could not be considered under Commission Rule 12.5 after the expiration of limitations.
- F. The Complaint Alleges Conduct the Texas Ethics Commission Cannot Consider.
Similarly, an allegation of “Abuse of Official Capacity” under Tex. Penal Code §39.02 permits the finding of an offense only if the public servant, “with intent to obtain a benefit or with intent to harm or defraud another, intentionally or knowingly…misuses government property….” If the value of the thing misused, say the equivalent of a photocopy, is less than $20, an offense would be classified as a Class C misdemeanor, for which the two-year statute of limitations applies. The Texas Ethics Commission would not consider such an allegation, as it is outside the jurisdiction of the TEC. Ms. Lilly did not misuse any government property, and committed no offense. But such an allegation, both to the Texas Ethics Commission and to the El Paso Police Department, triggers significant concern to any respondent. Ms. Ness-Garcia knew or should have known that such complaint should not have been made to the Texas Ethics Commission.
Now that we have the complaint and the evidence on which Ms. Ness-Garcia based her complaint, it is abundantly clear that there existed no basis in law or fact for the complaint to the Texas Ethics Commission.
- III. May a Complaint Be Filed With The Texas Ethics Commission That Ms. Ness-Garcia’s Complaint Was Frivolous, In Order to Recover Costs?
A very strong argument can be made for filing a complaint against Ms. Ness-Garcia to recover costs.
A respondent to a complaint may seek the imposition of a civil penalty imposed by the Texas Ethics Commission of not more than $10,000. The enabling statute sets forth the factors to consider in assessing sanctions.The Government Code also makes “a person who files a frivolous complaint … civilly liable to the respondent in an amount equal to the greater of $10,000 or the amount of actual damages incurred by the respondent, including court costs and attorney fees.” In this instance, the damages will greatly exceed $10,000.
How does the Texas Ethics commission determine whether the complaint was frivolous under the statute and rules? The Commission Rules provide:
(b) In deciding if a complaint is frivolous, the commission will be guided by the Texas Rules of Civil Procedure, Rule 13, and interpretations of that rule, and may also consider:
(1) the timing of the complaint with respect to when the facts supporting the alleged violation became known or should have become known to the complainant, and with respect to the date of any pending election in which the respondent is a candidate or is involved with a candidacy, if any;
(2) the nature and type of any publicity surrounding the filing of the complaint, and the degree of participation by the complainant in publicizing the fact that a complaint was filed with the commission;
(3) the existence and nature of any relationship between the respondent and the complainant before the complaint was filed;
(4) if respondent is a candidate for election to office, the existence and nature of any relationship between the complainant and any candidate or group opposing the respondent;
(5) any evidence that the complainant knew or reasonably should have known that the allegations in the complaint were groundless; and
(6) any evidence of the complainant’s motives in filing the complaint
Tex. Ethics Comm’n R. 12.35(b).
We have already discussed the proximity of the complaint to the municipal election (factor 1), the pre-filing publicity (factor 2), the fact that the complainant is a candidate opposing the respondent (factor 4), and the evidence that the complainant knew or reasonably should have known that the allegations in the complaint were groundless (factor 5). Further evidence is abundant that Ms. Ness-Garcia has shown hostility and anger toward Ms. Lilly to the public and televisions news, particularly after the City Council hearing on her request to waive any costs for production of records pursuant to her Public Information Act request (factor 3). In this regard, please refer to the video interviews of Ms. Ness-Garcia, especially on KVIA, in which she also attacks Ms. Lilly for seeking counsel, surprisingly stating that “the only reason she (Ms. Lilly) had a personal attorney is if she has something to hide.” Considering Ms. Ness-Garcia’s professional training and law practice, such comment is meant to be inflammatory and derogatory, and further evidence of the complainant’s animas toward Ms. Lilly.Finally, Ms. Ness-Garcia falsely swore to the complaint, alleging that she had personal knowledge of all the events and communications, even though all the evidence clearly establishes that she did not have any personal knowledge.
There is more than sufficient evidence on all five factors considered by the Commission to determine whether the complaint was frivolous, and all evidence shows that the motivation for the complaint was a hostile opposing candidate’s desire to seek pre-election publicity, immediately before the election and without time for the respondent candidate/officeholder to investigate and respond, in order to persuade voters to cast their ballots for her. These are all the requirements for a finding that Ms. Ness-Garcia’s complaint to the Texas Ethics Commission was frivolous, groundless, and brought in bad faith and for purposes of harassment.
TEC Complaint, § VI.
TEC Complaint §VII.
Ms. Ness-Garcia’s Public Information Act (“PIA”) request sought the production of documents between July 1, 2005, and the date of request, April 14, 2011, a period of five years, eight and one-half months.
 “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.”
Tex. Elec. Code Ann. §255.003(a).
Tex. Code Crim. P. Art. 12.2.
 Tex. Penal Code §39.02(a)(2).
 Tex. Gov’t Code Ann. §571.176(a).
 Factors considered for assessment of sanctions include:
(1) the seriousness of the violation, including the nature, circumstances, consequences, extent, and gravity of the violation;
(2) the history and extent of previous violations;
(3) the demonstrated good faith of the violator, including actions taken to rectify the consequences of the violation;
(4) the penalty necessary to deter future violations; and
(5) any other matters that justice may require.
Tex. Gov’t Code Ann. §571.177.
 Tex. Gov’t Code Ann. §571.176(b)
Does Ms. Ness-Garcia imply that all clients who come to see her are guilty or have done something wrong? The presumption of innocence is a fundamental tenet of American law, and one of the basic concepts of a free society for which many Americans have fought and died for many years. The Sixth Amendment to the U.S. Constitution speaks to the right to counsel, which applies regardless of race, creed, color, or station in life. Due process of law, as the Texas Ethics Commission duly notes, is a fundamental concern.