Challengers Hit Speed Bumps in Run-Off Council Races

Jimmy Flannigan at a campaign event on Saturday, Nov. 28 (Photo by Jana Birchum)

Early voting in the City Council run-off elections begins today, Dec. 3, and District 6 Council Member Jimmy Flannigan has framed his contest with Mackenzie Kelly in no uncertain terms. "In 2014, just 191 votes separated Austin from democracy and fascism," Flannigan told about 15 supporters gathered at Springwoods Park on a rainy Saturday afternoon, in reference to his narrow loss to Don Zimmerman in a run-off that year. "We are walking on a razor's edge and District 6, among all of the Council districts, is the front line of this fight."

Springwoods Park, located near Parmer Lane and Anderson Mill Road, has become a regular rallying spot for the Flannigan campaign; it was also the site of an ugly episode the week prior, when members of the pro-­police and pro-military Wind Ther­a­py Free­dom Riders motorcycle club accosted Flan­ni­gan as he was leaving the campaign's Nov. 21 event. The club threatened to continue to confront Flannigan at his campaign events, but no one showed up at the Nov. 28 event.

Kelly, who finished third behind Zimmer­man and Flannigan in that 2014 contest, maintains she had no knowledge of the WTFers' plans to harass Flannigan and that the group is not affiliated with her campaign, but she has not condemned the group nor its attempt at intimidation. For Flannigan and his supporters, Kelly's loose association with the WTFers (she appears in multiple photos with members of the club at different events) and her refusal to flatly condemn their behavior reflects a pattern of support from some of the more unsavory characters in Austin politics.

One of these is local Proud Boy Christo­pher Ritchie, who took part in the notorious 2017 Unite the Right rally in Charlottesville, Va., and has clashed with participants in local Women's March and Black Lives Mat­ter events. Ritchie was photographed protesting Rep. Ilhan Omar, D-Minn., as she spoke in Austin earlier this year; he held a sign adorned with a swastika and Islamic crescent moon that read "Islamofascists: killing Jews since 1929. Hitler-approved."

Ritchie has also been photographed with Kelly, and he's a member of the Facebook group for Take Back Austin, the group Kelly founded in response to Council's votes to decriminalize homelessness in 2019. Take Back Austin has coordinated a few cleanups of encampments, but the group mostly exists as a venue for people to vent about the increased visibility of homelessness, and in more extreme cases to vilify and degrade the unhoused. In December 2019, Ritchie asked the group for information on how to run for City Council, so he could help "remove the commie trash" from city government, to which Kelly replied "Send­ing PM [private message]." At one point, Kelly followed Ritchie on Twitter, but she has since unfollowed him.

Kelly says the extent of her relationship with Ritchie is through run-ins at "various events that support conservative causes." She says she was cordial with him online because she was not fully aware of his association with the Proud Boys; now, she tries to distance herself from him and the group as much as she is able. "Their behavior and conduct are unbecoming and I believe there are more positive and productive ways to solve problems than what they engage in," Kelly wrote.

Kelly's own views, and not just her associations, have also been questioned. In a June 3 appearance on the local podcast Emer­gency Exit, the conversation veered into the subject of racial profiling, which Kelly and the two hosts agreed is bad. But, Kelly argued, criminal profiling is a tool that police officers depend on to deter crime – and race should be factored into a criminal profile, so long as it's not the only characteristic taken into consideration.

"I think that it's okay to say that a person's race is part of profiling for a criminal profile," Kelly told the podcast hosts. "But it can't just be based on race, it has to be based on what you're wearing, what your hair looks like, if you have glasses or not. There's a lot of things that go into a criminal profile, but what I can tell [is] the Austin Police Department has come a very long way from where they used to be from possible racial profiling to criminal profiling."

Kelly has campaigned on a pro-law enforcement message, and she's been endorsed by the Austin Police Association, so it is not surprising that she would find justification for department practices. But later in the conversation, Kelly adds: "If you're not doing bad things, then you have nothing to worry about." A city analysis, however, found that Black and Latinx Austinities continue to be stopped, searched, and arrested by APD at disproportionate rates. The report also found that when a Black or Latinx motorist's race was known before a traffic stop, they were more likely to be pulled over, evidence that APD has not abandoned racial profiling as thoroughly as Kelly believes.

Kelly told us that although she still believes race can and should be factored into a criminal profile, she was using the term in its "professional, non-discriminatory meaning," which may not have been apparent to people unfamiliar with the process of building a criminal profile. "By no means do I support arresting someone based on their race or expression of ethnic identity," she wrote. She said part of the reason she wants to restore funding to APD for cadet classes is so officers can be trained on how to conduct nondiscriminatory profiling.

Regarding the city's racial disparities report, Kelly wrote that the numbers would likely be even worse had the department not "come a long way," as she said on the podcast. "I'm greatly concerned that deep cuts to APD and the cancellation of this year's police academy will hinder further progress to the goal of ending racial discrimination during arrests."

Kelly's Legal Matters

Kelly is now an enthusiastic public champion of Austin law enforcement, but in 2011, she was arrested after lying to an APD officer about how she was using her occupational driver's license. After failing to make payments on fines for prior citations, her regular license had been suspended under the provisions of the state's now-repealed Driver Responsibility Program.

The occupational license Kelly obtained only allowed her to drive for specific purposes, such as to and from work. On Aug. 18, 2011, Kelly was pulled over for speeding by Officer Shane Boughton. Kelly admitted to speeding, according to the report filed by Boughton, but she could not produce the court order, as is required by law, permitting her to use the ODL. Instead, Kelly began crying and told the officer that she was late for a meeting at Austin's Combined Transportation, Emergency, and Commun­i­ca­tions Center, where she was working at the time. Boughton wrote that he believed her, partly because she was wearing an "emergency planning shirt."

Mackenzie Kelly (Image via the City of Austin / ATXN)

But Kelly wasn't driving to CTECC; she was on the way to interview for an internship on the Bobby Bones show, back when he was just a humble Austin DJ at 96.7 KISS FM. Shortly after Boughton cited her for speeding and let her go, Kelly tweeted, "Managed to get a speeding ticket on my way to the Mr. Bobby Bones internship," adding later, "Speeding ticket was totally worth it. I was offered the internship for the Mr. Bobby Bones show."

A fellow APD officer who followed Kelly on Twitter texted Boughton screenshots of the tweets to let him know Kelly had lied to him. "After seeing this evidence I then realized she was not on her way to work as she told me," Boughton wrote in his incident report. "She was actually on her going to an internship interview ... she lied to me."

A warrant was issued for Kelly's arrest, and on Aug. 29, 2011, she was booked in the Travis County Jail. Later that day, she was released on a $1,500 personal bond; in 2015, the arrest was expunged from her record.

In an email, Kelly told us that she viewed driving to the internship interview as a legitimate use of the ODL, although that does not explain why she chose to lie to Officer Boughton when he pulled her over for speeding. "The officer obviously disagreed, and I learned from that mistake the hard way," she wrote. "I have grown and matured since 2011, and my support of law enforcement and public safety have grown and matured similarly."

Kelly has had more recent legal challenges. For the past four years, she has primarily worked in home health care; in March 2020, her former employer, Right at Home, began the process of filing suit against her for allegedly downloading a database of "referral sources, customers, providers, and other confidential business information" from RAH on her last day of employment, Oct. 4, 2019. RAH claims she took the information to a direct competitor, A Place at Home, where Kelly began working.

In January 2020, attorneys with the Littler Mendelson law firm, representing RAH, sent Kelly a cease-and-desist letter alleging she was in violation of a confidentiality and non-compete agreement she signed with the company. The letter alleges that Kelly engaged in efforts to solicit RAH clients to switch to APAH.

Mark Land, representing Kelly, responded in a February letter that his client had "no intention of violating any legal or moral obligation" to RAH, and that the confidential data Kelly downloaded was done at the request of RAH leadership. Land argues that because Kelly did not try and lure her own grandmother, an RAH client, to APAH, it is unreasonable to accuse her of trying to do so with other RAH clients. "Ms. Kelly has gone well beyond any obligation to Right at Home under the Non-Compete," the letter reads. "Mackenzie has never tried to get any Right at Home employee to stop work at Right at Home or to get any client, including her own grandmother, to stop hiring Right at Home."

Unsatisfied with this response, RAH opted to file a petition with the 425th Dis­trict Court in Williamson County requesting an investigation into their claim. In the petition, RAH attorneys say the business has seen a 50% drop in billable hours compared to the five months preceding Kelly's departure – which they attribute to APAH poaching clients based on the improperly accessed confidential information.

The petition requests that Kelly and an APAH representative sit for a deposition to establish facts relating to the allegations, which has not occurred as of yet. In a March 9 letter, APAH owner Paul Walton wrote to the owners of RAH that if the claim was pursued, "the most logical course of action for me to follow results in the termination of Ms. Kelly's employment." That would reflect poorly on both companies, Walton argued, because clients would wonder why Kelly, whom he says is well-respected in the field, is searching for new employment. The next day, RAH filed its petition in court, and not long after that, Kelly was let go from APAH, which she says is related to budget pressures caused by COVID-19 throughout the industry.

Kelly told the Chronicle that her non-compete agreement with RAH expired in Octo­ber, and that she and her attorney expect the court to dismiss RAH's claim. "RAH thought it was wrong I continued to lead an industry trade group," Kelly wrote in an email, "and they wrongly thought I was trying to steal their clients. That is simply not true."

Grumbles in the West

By comparison, the District 10 race has been more low-key, though every bit as contentious. Incumbent Alison Alter and opponent Jennifer Virden have taken turns sniping at each other in emails to supporters, and a Nov. 30 League of Women Voters forum was filled with heated back-and-forths.

Alter is one of the more centrist members of the current Council, particularly on land use, but two notable exchanges from the LWV forum highlight how drastic of a shift to the right Virden would represent at City Hall. At one point, the candidates were asked whether they thought APD had a problem with systemic racism.

Alison Alter (Photo by John Anderson)

Alter's answer explicitly called out the problem, but carefully and correctly noted that systemic racism within any institution does not imply every member of that institution is racist. "I certainly believe we need to root out systemic racism in the police department, and believe there is a systemic problem," Alter said. "That doesn't mean every officer on the force is racist, but we have a system that lends itself to racist outcomes." She added that one reason for canceling the 2021 police cadet classes was to give the city time to revamp the curriculum and methods used to train APD officers.

Virden, on the other hand, said, "I do not believe there is a systemic problem in APD regarding racism," and any instances of officers being racist (we reported on one just last week, and investigations such as the Tatum report have documented many more, going back many years) are "rare and not the common occurrence." Virden then pivoted to a mischaracterization of Council's vote to reallocate public safety – what some call "defunding the police" – which has been a central message of her campaign.

Later during the forum, the candidates were asked about another major issue – what the city should do about encampments that have become more visible throughout the city following Council's decriminalization of homelessness. Alter voted against lifting restrictions on public camping back in 2019, but Virden has tried to tie the incumbent to that policy anyway. She wants to reinstate the ban, which advocates say will simply push vulnerable people living in our streets away from the public eye into less safe places.

Like other conservative critics of Austin's approach to homelessness, Virden says the camping ban would be beneficial to people now living under highway bridges and in greenbelts. "The camping ban is a tool that must be reinstated so we can consolidate the homeless population," she said, "so we can get them into the housing and services they need."

However, she opposes the city's strategy to buy motels to convert into supportive housing where people can transition into more stable living situations and access needed services. Instead, Virden pointed to the model made famous by San Antonio's Haven for Hope and championed by GOP leaders including Gov. Greg Abbott, which has similarities with the Camp Esperanza site established by the governor in Austin last year. City staff have already considered and rejected using sanctioned encampments, and Alter offered a terse response to Virden's suggestion.

"That's not a plan," Alter said. "It's not a plan that addresses things quickly." She noted that Camp Esperanza, on state-owned land in Southeast Austin far from services and transit, had encountered many problems and is working now only because The Other Ones Foundation has established an outpost at the site. "Haven for Hope is an 'out of sight, out of mind' model [that] is very expensive and takes a long time to move forward. Unless you want homeless encampments [to remain in] D10, that's not how we move forward."

Out-Neighboring Alter?

Virden's campaign has focused prominently on land use, an issue of high importance to D10 voters. Though Alter has been a staunch opponent of efforts supported by the Council majority to revise the Land Devel­opment Code, Virden tried to paint herself as the true neighborhood defender. It appears the district's well-organized neighborhood associations aren't buying it.

Jennifer Virden (Image via the City of Austin / ATXN)

Members of the venerable West Austin Neighborhood Group, which includes most of the 78703 ZIP code, have expressed frustration over Virden's unwillingness to engage in substantive discussion of land use policies. (Flannigan made a similar observation about Kelly at the D6 LWV forum, saying that Kelly only engaged in high-level land-use discussion, such as supporting building densely along transit corridors. "You have to put pen to paper and put it on a map," he said. "It's easy to say 'put the density on the corridor,' because when you say that, people don't think you mean the corridor they live on.")

WANG organized its own run-off candidate forum on Nov. 22; both candidates were invited, but Virden canceled one day before the event. In a tweet, she explained that she withdrew because she would only "participate in forums hosted by neutral parties." No doubt many members of WANG feel Alter has effectively spoken for them on land use questions. They also make up a huge portion of the electorate Virden is campaigning to represent.

Virden did participate in an earlier forum organized by WANG on Nov. 9, the week after she came in second to Alter in the general election. There, the candidate stumbled on questions relating to land use – such as the fight over The Grove PUD or the McMansion ordinance – that animate voters in D10. At multiple points, Virden admitted that she did not participate in any of the LDC or budget hearings and likely does not know as much about land use policy as the incumbent.

Of course, most Austin citizens do not know as much about land use policy as do their incumbent council members. But Virden claims she can do a better job for D10 on land use than Alter, so it is puzzling that she hasn't been better prepared to explain how. While that could explain why she declined to participate in WANG's Nov. 22 forum, she didn't have that option for the LWV event – as a recipient of money from the city's Fair Campaign Finance Fund (which collects registration fees from city lobbyists), Virden was contractually required to participate in that one.