My blog post; “What is it with Steve Ortega and Bain Construction?” on June 5 generated a couple of emails and a comment basically asking me why I had not filed a complaint against Ortega. As I thought about this, two issues arouse for me that necessitated some soul searching on my part. The first issue was whether I had a “duty” or “responsibility” to report alleged criminal activity that I was aware of to the appropriate authorities. The second issue I considered was whether I needed to take action since I complain about not many people willing to do what is right.
In regards to whether I had a legal duty, or requirement to report wrongdoing that I may be aware of the fact is that I do not clearly understand what the law is on that regard. It is a complex question that involves many legal jurisdictions and revolves around what level of criminality is alleged. Maybe a lawyer can enlighten us on the legal requirement (duty) to report a possible crime.
In regards to having the “responsibility” to report an alleged crime, again the answer comes down to one’s own definition of what constitutes an alleged crime that one has a personal responsibility to report. For example, I witness vehicular violations on a regular basis. Will I reporting such activity to local law enforcement be welcomed or beneficial to anyone? Probably not. However if I witness a violent crime then my moral compass requires that I document and report what I know to the appropriate authorities.
Finally, I write about political shenanigans and I regularly complain about complicity by many looking the other way to misconduct. Those who wrote that I should take action are completely right if I am to adhere to the same standard I have asked others to.
When I do not know the answer to something I always fall to my personal doctrine of doing more than is required in order to avoid potential problems. I do not know whether I have a legal “duty” or “responsibility” to report an alleged election code violation that I am aware of and since I do not know then I will do what I can in order to comply should compliance be required. Adding to that, the issue of doing what I ask others to do the answer became clear; I needed to file a complaint against Steve Ortega.
As my allegation revolves around an alleged Election Code violation, I went to look for information with the Texas Secretary of State and the Texas Ethics Commission. The Secretary of State provides a form titled “Election Complaint to the Texas Secretary of State” for filing complaints. I also went the Texas Ethics Commission website for guidance on the process. Imagine my surprise to learn that according to the Texas Ethics Commission’s “Sworn Complaint Before the Texas Ethics Commission” document, I do not have standing to file a complaint against Steve Ortega.
According to the form, “an individual must be a resident of the state of Texas to be eligible to file a sworn complaint with the Texas Ethics Commission.” The form adds, “An individual may also be eligible to file a sworn complaint with the Texas Ethics Commission if the individual owns real property in the state of Texas.”
As I do not own personal real estate property in the State of Texas and because I am not a resident of the state, I am not able to file a complaint with the Texas Ethics Commission. However, the Texas Secretary of State does not seem to have the same prohibition. Therefore, I completed their form and submitted it on June 19, 2014 via email.
The following is the information I submitted in my complaint. I will let you know what response, if any, I receive.
Allegation of Election Code Violation by Steve Ortega
Narrative of Statement of Facts
Alleged violation of Texas Title 15, Election Code; Regulating Political Funds and Campaigns, specifically Chapter 253; Restrictions on Contributions and Expenditures, Subchapter D; Corporations and Labor Organizations, Sections 253.091 and 253.094.
Section 253.091, Corporations Covered states that the subchapter “applies only to corporations that are organized under the Texas Business Corporation Act, the Texas Non-Profit Corporation Act, the Texas For-Profit Corporation Law, the Texas Non-Profit Corporation Act [sic], the Texas Nonprofit Corporation Law, federal law, or law of another state or nation.”
Section 253.094, Contributions and Expenditures Prohibited states “(a) A corporation or labor organization may not make a political contribution or political expenditure that is not authorized by this subchapter.”
On May 16, 2013, Steve Ortega filed Texas Ethics Commission Form COR-C/OH; “Correction/Amendment Affidavit For Candidate/Officeholder” with the El Paso Texas Municipal Clerks Office.
On the afore mentioned form, under Schedule A, Steve Ortega reported accepting a campaign contribution in the amount of $500 USD on April 30, 2013 from Bain Construction 14180 Blair Court, Horizon City, TX 79923.
The specific campaign contribution may be found in the attached copy (Exhibit 1) of the page of Ortega’s filing detailing the contribution on line item number three. The original filing may be retrieved at the El Paso, Texas Municipal Clerks Office.
In June 7, 2013, Steve Ortega filed Texas Ethics Commission Form C/OH; “Candidate/Officeholder Campaign Finance Report” with the El Paso Texas Municipal Clerks Office.
On the June 7, 2013 filing, Steve Ortega reported that on May 9, 2013 his campaign had paid Bain Construction, 14160 Blair Dr, Horizon City, TX 79928 $500.00 USD in Schedule F; “Political Expenditures”.
Please see Exhibit 2 attached herein. The original may also be retrieved from the El Paso Texas Municipal Clerks office.
On January 1, 2014, Steve Ortega filed Texas Ethics Commission Form C/OH; “Candidate/Officeholder Campaign Finance Report” with the El Paso Texas Municipal Clerks Office.
In this filing, Steve Ortega reported on Schedule K; “Interest Earned, Other Credits/Gains/Refunds, and Purchase of Investments” that on July 8, 2013 he received $500 USD from Bain Construction 14160 Blair Court, Horizon City, TX 79928.
Under item 7, Steve Ortega noted; “The contribution was accepted in good faith. The campaign learned Bain may be an incorporated entity and attempted to return the contribution. The contributee proved to be an LLC chose to reinstate the contribution.”
Please see attached exhibit 3. The original may be retrieved from the El Paso Texas Municipal Clerks Office.
The El Paso County Assumed Names database accessed on June 19, 2014 shows the following Bain Construction assumed named businesses as “active” and as a business type labeled “corporation”.
1. Instrument: 20070005888 filed on 09/27/2007 Bain Construction at 14160 Blair Dr. Horizon Texas. The “agent” is listed as Bain Enterprises, LLC at the same address.
2. Instrument: 20040004987 filed on 08/30/2004 Bain Construction at 14160 Blair Court, Horizon Texas. The “agent” is listed as Bain Enterprises, LTD at the same address.
3. Instrument: 20040004987 filed on 08/30/2004 Bain Construction at 14160 Blair Court. Horizon Texas. The “agent” is listed as Scott C. Bain at the same address.
4. Instrument: 20070005888 filed on 09/27/2007 Bain Construction at 14160 Blair Dr. Horizon Texas. The “agent” is listed as Scott C Bain at the same address.
The County Assumed Names database also lists two Bain Construction, Inc. as “inactive”.
1. Instrument: 20030003549 filed on 07/3/2003 Bain Construction, Inc. at 14160 Blair Ct Horizon City Texas. The “agent” is listed as Bain Construction Inc. at the same address.
2. Instrument: 20030003549 filed on 07/3/2003 Bain Construction, Inc. at 14160 Blair Ct Horizon City Texas. The “agent” is listed as Scott C Bain at the same address.
The Texas Secretary of State lists the following Bain Construction companies:
1. Bain Construction, Inc. (Filing no: 148810300) is a Domestic For-Profit Corporation at 14160 Blair Court, Horizon City, TX 79928. The registered agent is Scott C. Bain. This corporation has no assumed names on file with the Texas Secretary of State.
2. Bain Enterprises, LLC. (Filing no: 800834928) is a Domestic Limited Liability Company (LLC) at 14160 Blair Dr., Horizon City, TX 79928-7683. Management of the entity is listed as Bain Construction, Inc. with the title of General Partner. The address listed is 14160 Blair Dr., El Paso, TX 79912.
The Texas Secretary of State lists Bain Construction as an assumed name for Bain Enterprises, LLC.
Texas Ethics Commission Opinion on LLC contributions
The Texas Ethics Commission issued Ethics Advisory Opinion No. 383 on December 12, 1997. (AOR-419, AOR-40) The Advisory Opinion notes that “A Texas limited liability company is subject to the restrictions in Election Code chapter 253, subsection D, if it engages in a type of business listed in Election Code section 253.093 or if it is owned, in whole or in part, by an entity subject to the restrictions in Election Code chapter 253, subchapter D.”
Because of the foregoing information, I believe that Steve Ortega’s acceptance of the $500 USD campaign contribution from Bain Construction may be a violation of Chapter 253, subsection D of the Texas Election code and therefore respectfully request that your entity investigate in order to make a determination on whether a violation may have occurred.