ACORN Did Nothing Illegal, Independent Probe Finds

ACORN Did Nothing Illegal, Independent Probe Finds

The Association of Community Organizers for Reform Now (ACORN) doesn’t show a pattern of intentional and illegal behavior in undercover videos that conservatives shot of ACORN staffers. That’s according to an independent, two-month review of ACORN released Monday.

Scott Harshbarger, senior counsel at Proskauer and former Massachusetts attorney general, created the findings of the report. The independent review is the result of two months of research and interviews by Harshbarger and lawyer Amy Crafts working in Proskauer’s Boston, Washington and New York offices. It shows the independent analysis requested by ACORN on September 21 in the wake of the video controversies, significant negative news coverage and lost support among some funders, allies and supporters.

The independent report makes clear that the controversy involving hidden-camera videos, which were edited before being partially released to the public, showed fundamental problems in the organization and structure of ACORN that date back to its founders. Also, the report notes that the video controversy was seen largely as ACORN’s “third strike” after the disclosure in June 2008 of an embezzlement cover-up, which triggered the firing of ACORN’s founder, and allegations of voter registration fraud during the 2008 election.

“While some of the advice and counsel given by ACORN employees and volunteers was clearly inappropriate and unprofessional, we did not find a pattern of intentional, illegal conduct by ACORN staff; in fact, there is no evidence that action, illegal or otherwise, was taken by any ACORN employee on behalf of the videographers,” Harshbarger wrote. “Instead, the videos represent the byproduct of ACORN’s longstanding management weaknesses, including a lack of training, a lack of procedures, and a lack of on-site supervision.”

Videos of ACORN staffers advising a woman (Hannah Giles) acting as a prostitute and a man (James O’Keefe) as a boyfriend led to much criticism. In the undercover videos, the pair plans to buy a house for use as a brothel, pretends to seek assistance with illegal matters such as prostitution and human trafficking and gets advice from a few ACORN employees. The two filmed their meetings with a hidden camera at ACORN offices, further igniting the Republicans’ war against ACORN. The videographers visited ACORN or ACORN Housing offices in Baltimore, Brooklyn, Los Angeles, Miami, Philadelphia, San Bernardino, San Diego and Washington, DC.

However, Harshbarger notes that the unedited videos have never been made public: “The videos that have been released appear to have been edited, in some cases substantially, including the insertion of a substitute voiceover for significant portions of Mr. O’Keefe’s and Ms. Giles’s comments, which makes it difficult to determine the questions to which ACORN employees are responding. A comparison of the publicly available transcripts to the released videos confirms that large portions of the original video have been omitted from the released versions.”

In addition, Harshbarger states that the ACORN representatives who were videotaped were not organizers or supervisory level employees; they were members or part-time staffers. Also, he wrote that none of the individuals captured on video consented to being video- or audiotaped, and four of the states where the videos were recorded appear to prohibit such taping without consent. And he said, “There is no evidence that any action, illegal or otherwise, was taken by ACORN employees on behalf of the videographers.”

Harshbarger states, “the videos stand as a symbol of ACORN’s organizational and supervisory weakness. The disparate ways in which ACORN staff handled the videographers’ visits highlight the organization’s failure to deploy best practices at
the grassroots level to ensure proper screening and intake processes, supervision and training.”

The serious management challenges detailed in the report are the fault of ACORN’s founder and many leaders who, in their drive for growth, failed to commit the organization to the basic, appropriate standards of governance and accountability, Harshbarger said. “As a result, ACORN not only fell short of living its principles but also left itself vulnerable to public embarrassment,” he wrote.

Harshbarger criticized ACORN for not acting quickly to create reforms after founder Wade Rathke allegedly covered up an eight-year embezzlement by his brother. Rathke and certain former leaders, the report finds, failed to understand the need for basic principles of accountability and compliance in the drive to grow and succeed. As a result, the report finds, ACORN not only fell short of meeting the standards dictated by its own guiding principles, but also failed to meet the expectations and requirements of the stakeholders who supported and benefited from its advocacy and service work.

The report found that systemic shortcomings – including lax oversight and governance, lost focus on its core mission and growth beyond its means – set the stage for the video controversy that erupted this year and threatened to envelop the progressive grassroots organizing and advocacy group.

Also, although the report credits reform leadership with making some gains in recent years to change the course of ACORN, the report states that ACORN can only survive if its leadership embraces and executes profound governance reforms immediately.

“ACORN’s transformation may succeed if its current leaders move rapidly to implement effective legal, best practices and appropriate regulatory compliance and governance systems,” Harshbarger said. “ACORN will then be in a position to regain and reinforce the trust and credibility required to successfully pursue a mission on which hundreds of thousands of citizens depend. The roadmap for reform is clear, but it will not occur overnight and will require perseverance and patience.”

Founded in 1970, ACORN is the largest grassroots community organization of low- and moderate-income people, with more than 400,000 member families organized into more than 1,200 neighborhood chapters in about 75 cities across the country. The national organization is currently based in Washington, DC, and deals with finances and governance, and also coordinates national issues-based campaigns and voter registration drives.

ACORN evolved from a grassroots, community-based organization with a mission of advocacy for the poor and powerless into, in recent years, a major national entity both in scope and ambition. Historically, ACORN has, as part of its community-organizing mission, provided a range of services for its constituency, including citizen engagement, lobbying, political mobilization, voter registration and advocacy about foreclosure prevention, fair wage laws, affordable housing, first-time home ownership, predatory lending reform and mortgage protection.

The video controversy erupted as ACORN leadership was attempting to execute several areas of reform. The report urged ACORN to redouble its efforts, to refocus on its core mission and issued nine recommendations meant to serve, collectively, as the path forward for the embattled organizing group.

“Our nine recommendations are designed to rebuild the trust and credibility that ACORN must maintain to effectively and efficiently serve the hundreds of thousands of poor and powerless citizens who rely on the organization as a passionate advocate for them and their families,” Harshbarger said.

The report recommended that ACORN do the following:

* Return its organizational focus to its core competency, meaning community organizing and citizen engagement empowerment, with related services, and move away from offering services that may be provided more effectively and efficiently by others.

* Consolidate, simplify and centralize its local and national organizational staffing, monitoring and supervision.

* Develop a simplified national organization and board structure consisting of just two entities: a 501(c)(3) for charitable, nonprofit fundraising, advocacy and education with a majority of independent members, and a 501(c)(4) for support of ACORN community organization and political activity, with at least one-third independent members.

* Continue to implement internal controls, compliance and codes of ethics designed to educate and guide staff, volunteers and board members.

* Recruit an independent ethics officer and/or independent inspector general to oversee and implement the governance and compliance program at the national level, and an independent member of the national board should chair a board-level ethics and governance committee.

* Hire a qualified and experienced chief operating and financial officer, comptroller and in-house auditing staff.

* Continue to strengthen its legal capacity to guide its governance reforms, coordinate the dissolution of all extraneous ACORN organizations and represent the organization’s interests in litigation and investigations.

* Require all state and local affiliates to agree to oversight by the national staff and board, and to adhere to appropriate national standards, including financial audits, training and supervision.

* Formalize a strong, independent, national advisory group and charge it with the responsibility to report within six months, and afterward annually for two years, to the national board on the progress of the reform action plan.

Harshbarger said it was clear that ACORN leadership and board members have the will to reform and understand the need to do so quickly and completely.

“Our experience tells us that these recommendations, acted on with a sense of urgency, are crucial to reclaim, maintain and strengthen ACORN’s ability to serve its members and constituents,” Harshbarger said. “The path toward renewal is clear, but reaching the destination will require hard choices, perseverance and patience.”

Leaders of progressive organizations spoke favorably about Harshbarger’s report.

Nan Aron is president for Alliance for Justice, a national association of environmental, civil rights, mental health, women’s, children’s and consumer advocacy organizations. Aron said, “We are pleased to see former Attorney General Harshbarger’s recommendations to ACORN. This independent report serves as a valuable reminder that in barring ACORN from competing for federal contracts when no lawbreaking had occurred, Congress rushed to judgment and violated fundamental constitutional rights.”

Also, Aron said, “Heavily doctored video footage that has never been released in its entirety was used to stampede Congress into a politically driven panic. Congress should now turn its attention to its real responsibilities – including supporting America’s nonprofit organizations that speak for the voiceless, make democracy work, and provide essential services in our communities’ time of crisis.”

Wade Henderson, president and CEO for the Leadership Conference on Civil Rights, said, “We’re confident that the recommendations in the report will benefit ACORN and help restore public trust in this vital community service organization.”

ACORN also was in the news last week because a special hearing on ACORN was held then. It was co-sponsored by Rep. Darrell Issa (R-California) and Rep. Lamar Smith (R-Texas). Members of ACORN-investigating conservative organizations such as the Capital Research Center and Big Government attended. Officially titled a “Joint Forum on ACORN,” the hearing gave Republican critics an opportunity to reiterate allegations against the activist group, which lost its long-standing federal funding in two September votes.

Republican members of Congress dubbed ACORN a “criminal enterprise” with close and current ties to the highest levels of the Obama administration and the labor movement. Also, Representative Smith said that because the president has ties with ACORN, the attorney general should appoint a special prosecutor to investigate ACORN.

Republicans brought 81 pages of documents about ACORN’s voter registration activities in 2004 and 2006 to supplement Issa’s July 2009 report, “Is ACORN Intentionally Structured as a Criminal Enterprise?”

Critics argued that the organization’s political activity benefits Democrats and President Obama and, therefore, was reason to get rid of its tax-exempt status.

Conservatives’ criticism of ACORN is not new. Representative Issa previously sponsored the “Defund ACORN Act.” However, last September, Rep. Jerrold Nadler (D-New York) argued that passing an initiative to withhold federal funds from ACORN was unconstitutional. That’s because the Supreme Court calls for prohibiting legislative acts that punish members of a group without a judicial trial.

In the end, though, the House voted 345-75, which included 172 Democrats, to prohibit ACORN from getting federal funds. The vote came after the video camera controversy, which triggered much media coverage in right-wing news outlets and then also in the mainstream press.

ACORN wound up firing the employees who advised O’Keefe and Giles, and later filed a multimillion-dollar lawsuit against O’Keefe and Giles, alleging that the pair violated Maryland State law, where one undercover video was filmed, that states that both parties must agree to sound recordings.

Also, the civil rights organization the Center for Constitutional Rights filed a lawsuit on behalf of ACORN, alleging that lawmakers violated the Constitution by doing what Nadler had advised against doing. Meanwhile ACORN was denied funding for a three-year $780,000 grant for outreach to poor communities and to raise awareness of the lung disease asthma; ACORN’s grant got dropped with the Environmental Protection Agency as a result of the approval of the Defund ACORN Act. The lawsuit also states that ACORN has been forced to close offices and drastically reduce services to moderate-income people around the country.