Tomball Mayor Gretchen Fagan has fired back at the Tomball Tea Party and its president, Richard Smith.

Fagan filed a complaint with the Texas Ethics Commission (TEC) on Dec. 15, 2010, claiming that Smith and the Tea Party violated five statues in the Texas Election Code. The TEC determined Fagan’s claims met the commission’s “technical form requirements for a complaint” and instructed Smith to submit his reply.

Among the claims that Fagan makes are complaints that the Tea Party accepted contributions from a corporation, accepted political contributions and made political expenditures without appointing a campaign treasurer.

She also reported to the TEC that the Tea Party allegedly accepted contributions from two corporations, Pecos Grilling Co., and TyberNet/TyberTel, as well as illegally advertised a mayoral recall election petition at a corporate office, Joe’s Barber Shop in Tomball.

Smith called the complaints “frivolous” and claimed that the TEC has dismissed all of Fagan’s claims but three, namely the allegation that the Tea Party allowed Joe’s Barber Shop to be a location to sign the recall petition. Smith received the letter from the TEC on Dec. 22 and had 25 business days to respond.

Smith said he “answered the complaint” and many of the charges have since been dismissed. Fagan said she has not received word from the TEC regarding dismissals of her claims, despite the TEC’s assurance that she would be notified once a ruling has been made.

By law, the TEC cannot comment publicly on the status of complaints.

For the past several months, the Tomball Tea Party has been working to obtain enough signatures to hold a recall election for Fagan. Since last summer, Smith and the Tea Party have vehemently opposed Fagan’s tenure as mayor after the city council voted to keep open the city’s day labor site.

Smith said that Fagan’s claims were “unfounded.” He believes the Tomball Tea Party “is not a political committee” since he said it has not raised more than $500 in contributions, nor had it spent more than $500 in political expenditures.

“That precludes us from having a treasurer,” he said.

Fagan believes otherwise.

“The Tomball Tea Party has been engaging in political activity for months, if not years, and has never filed an appointment of a campaign treasurer,” she stated in TEC complaint. “Further, the Tomball Tea Party has never once disclosed a list of its contributors or expenditures.”

Texas law requires political groups and candidates to report every expense they make and contribution they receive.

According to chapter 251.001 of the Texas Election Code a group is considered a “political committee” when “a group of persons that has as a principal purpose accepts political contributions or makes political expenditures.”

“You can be a political committee by your actions,” TEC attorney Tim Sorrels said. “There’s not a lower limit on being a committee. If you pool your money and spend $100, you’re a political committee.”

On Dec. 1, 2010, Smith paid for a quarter-page ad to run in the Tribune asking readers to sign a petition in favor of a recall election for Fagan, and looked to run the ad for two weeks. The ad directed those interested in signing the petition to do so at Joe’s Barber Shop.

The ad was paid for with a credit card issued to Smith and “Tomball Tea Party LLC.” The cost of the ad was $662.75, but was later refunded to Smith and the Tea Party after the Tribune opted not to run the ad based on its content.

The ad later ran in the Tomball Potpourri with the notation that the ad was a “political advertisement paid for by the Tomball Tea Party.”

Fagan claims in her complaint that the newspaper ad is an example of a Tea Party expenditure made without an appointed treasurer.

Smith dismisses the claim that the Tea Party functionally solicited the barber shop to be a signing spot.

“The owner saw the petition, asked to have a copy of the petition and have it signed,” Smith said. “We did not solicit the barbershop to put the petition there.”

Additionally, at the time of Fagan’s filing, the Tomball Tea Part website listed two “sponsors” on its home page, TyberNet/TyberTel and Pecos Grilling Co., where the Tea Party would hold its bi-monthly meetings.

Since the filing, Pecos has been removed as a sponsor and the group now meets at Los Arcos. However, TyberNet/TyberTel is still listed as a sponsor. The Tea Party’s website lists a Ty Thomas of TyberNet as one of its officers and its webmaster.

Smith said TyberNet is not a corporation and that Thomas offered to run and maintain the group’s website.

The Texas Ethics Commission meets every other month to review complaints. If found in violation, Smith is facing third degree felony charges.

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