A bitter divorce battle has escalated to accusations of official misconduct against Bandera County Attorney John Payne in what he has called an act of retaliation.
Melissa and Robert Turner are getting divorced. Payne is representing Robert Turner in their divorce proceedings through his private practice.
Gordon Forsness is Melissa Turner’s father, and has filed a complaint accusing Robert Turner of physically assaulting him during a supervised visitation. The case was dismissed by Bandera City Attorney Barbara Boulware-Wells, due to inconsistencies in statements made by Forsness and Melissa Turner.
Pam Scharmen is the Bandera Municipal Court clerk. In court documents related to the criminal assault case, due to a misunderstanding by Scharmen, she incorrectly listed Payne as Robert Turner’s defense attorney.
Melissa Turner and Forsness have made two accusations of official misconduct against Payne: one, that he represented Robert Turner against the State of Texas in a criminal case, which as an elected attorney is prohibited by the Texas Code of Criminal Procedure; and two, that he has not followed the rules of waiving county and state salary and compensation above a benchmark number as set forth in Texas Government Code 46.
Of the first accusation, Payne said it’s a simple misunderstanding.
“Pam saw me talking to Barbara, and she assumed I was acting as Robert’s defense counsel,” Payne said. “She listed me on the notices as defense counsel, which doesn’t make me defense counsel. I never filed an appearance of counsel, and I never appeared in court as his counsel on the criminal case.”
Of the second accusation, Payne said there is a measure of truth due to a separate misunderstanding.
“This one’s a complicated little rascal,” Payne said.
According to Payne, rural communities often allow their county attorney to maintain a private practice, because they would struggle financially to pay a metropolitan salary. Those county attorneys who are allowed to continue private practice once elected, are only allowed to be compensated annually up to 80-percent of the state’s “benchmark salary.”
Two erroneous assumptions over his first two years of office have left Payne about $700 outside the rules. The first, that annual salaries are based off IRS form W2 filings - a calendar year. The second, that the benchmark salary set forth by the State of Texas is based on district attorneys’ budgeted salary plus compensation.
Both assumptions, Payne has learned, were wrong.
“District attorneys make $140,000 to $150,000, if you count their salary and the supplements they get,” Payne said. “But when you look at how the benchmark salary is defined, that is just the budget-driven salary they get from the state.”
This $125,000 benchmark allows Payne to earn no more than $100,000 in salary and compensation.
“In my business life and my tax life, I’ve worked under the calendar year, but the county works on a fiscal year, Oct. 1 to Sept. 30,” Payne said. “Come to find out, based on the fiscal year for 2009-10, my salary was $100,700 and change - I have a problem there.”
When a county attorney’s total compensation exceeds the $100,000 limit, he is required to file a written waiver that states his excess salary should be returned to the county for expenses within the county attorney’s office.
“The waived salary goes into county funds, but it’s earmarked specifically for expenses in the county attorney’s office,” Payne said. “I’m required to, in essence, donate part of my salary back to the county.”
Upon learning of his mistake, Payne said he immediately contacted County Judge Richard Evans and County Auditor Christina Combs. He then contacted the Texas Attorney General’s office, which referred him to Rob Kepple of the Texas District & County Attorney’s Association in Austin.
Payne said Kepple advised him to file the appropriate waiver for this year and write a check to the county for the 2009-10 fiscal year discrepancy. The total to be deposited into the related fund will be around $5,400, which can then be used for expenses, such as continuing education for Payne and his staff at the county attorney’s office.
Payne said from his research, there is no defined punishment for failure to file a waiver on time.
“You either comply, or you’re made to comply,” Payne said.
With correct information in hand, Payne, who has practiced law for 34 years, said he is thankful to have the opportunity to get in compliance.
“I’m glad it was brought to my attention, it gave me the time this year to get my letter in,” Payne said.
Payne is less than thankful for the public campaign Melissa Turner and her father are waging against him.
“They’re simply looking for ways to retaliate from the adverse decisions they’ve suffered in an acrimonious and protracted custody battle in the 216th District Court,” Payne said. “In representing [Robert Turner], we now have primary custody of the children, and the mother has supervised visitation. She and her father are very upset about that.”
Payne said Melissa Turner is using the criminal court to gain traction in her civil custody case.
In an open letter, Melissa Turner said “Mr. Payne is able to manipulate the system for his clients, and I fear this goes beyond my case and is the situation for many others in the county. My 8- and 2-year-old children are being used as pawns to further Mr. Payne’s private practice...the undue influence Mr. Payne has for his private practice clients in the county and city is apparent and unethical.”