HomeMy Public PortalAboutCharter Review Committee Minutes 08-22-1994 Charter Review Committee
Meeting Date August 22, 1994
Present were: Michael Logan, Chairman, Don Acker , Vice Chairman, Lester Strother,
Jean Spieker, City Secretary Terri Willis, staff representative.
Also present were: Councilman Larry Wilson and P&Z Member JoDon Hicks.
1. Meeting called to order at 7:36.
2. Our review of the Charter continued at Section 5.09 Vacancies.
Review notes:
• Article V City Council Section 5.09 Vacancies. No change recommended.
• Section 6.02 City Manager(1) No change recommended.
• Section 6.02 City Manager(3 h.) Discussion continued on this topic without
resolution. Additional points made included the suggestion the Grievance Chairman
be contacted for his input. The Committee agreed to hold this topic for further
information and discussion.
• Section 6.08 Municipal Court (1). Judge of the Municipal Court. The consensus of
the Committee is still for the Charter to reflect the current Court System in the City
with vacancies treated as those for the Council.
• Section 6.08 Municipal Court (2). Clerk of the Municipal Court. No change
recommended.
• Section 9.04 Competitive Bidding. Consensus of the Committee to change amount of
contracts awarded without bid to $10,000. Discussion centered on pricing of various
items and the fact the current $5000 contract amount we now have would require
standard items to be forced to go out for bid. This would be both costly and
inefficient. Although the State permits this amount to be changed to $15,000 the
Committee agreed $10,000 was the more realistic and acceptable amount for our
City.
• Section 13.02 Power to Tax. the Committee still agrees the change is necessary. .
Section 14.01 Planning and Zoning Commission. No change is recommended.
• Section 15.02 Petition for Recall . Adopt changes as recommended in Attorney Paul
Wieneskie's letter of August 2, 1994.
• Section 15.04 Various Papers Constituting Petition. Adopt changes as recommended
in Attorney Paul Wieneskie's letter of August 2,1994.
• Section 15.05 Presentation of Petition to City Council. Discussion of
recommendations of City Attorney resulted in the following agreement: The
verification time period will be changed to 15 days, and the presentation will be
changed to "shall present such petition to the City Council of the City of Richland
Hills at the first regular Council meeting held within the next 15 days after the
verification period. If no Council meeting is scheduled there shall be a Special Council
meeting called to receive said petition.
• Section 15.06 Public Hearing to be Held. All agreed to adopt the 15 day change for a
t*" request of public hearing to be held.
Our review stopped at this point. At our next meeting we will finish our second review of
n. Charter . Chairman Logan asked City Secretary Willis request the City Attorney be
present at the meeting following the September) meeting.
L. Strother asked if we could consider a change of format and print for the Charter.
Chairman Logan suggested we finish our review and then consider such items.
Chairman Logan also stated he will contact City Manager Hughes regarding the grievance
process and bid process.
3. Chairman Logan called for comments from the public. Councilman L. Wilson thanked
us for the excellent job we were doing. We appreciated his comment. JoDon Hicks had
no further comments.
4. Meeting adjourned at 9:04P.M.
Respectfully submitted,
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CRIBBS & McFARLAND
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^ ATTORNEYS AT LAW
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PAUL F. WIENE9KIE
PAUL T. FRANCIS ARLINGTON, TEXAS 76094-0060
PAUL TOMME
August 2, 1994
Ms. Terri Willis
City Secretary
City of Richland Hills
3200 Diana Drive
Richland Hills, Texas 76118
RE: Questions from Charter Review Committee concerning various provisions
of Richland Hills' Home Rule Charter
Dear Ms. Willis:
I have received and have analyzed your correspondence to me dated July 20,
1994, containing numerous notes concerning discussions had by the Richland Hills
Charter Review Committee on various provisions of the existing City Charter. I
will now attempt to answer the questions posed in that memorandum; however, if I
miss any or if any other questions arise at the August meeting, please let me know
and I will attempt to get you some answers.
Section 2.01.
I do not believe it would be a good idea for the metes and bounds description of
the City's limits to be specified within the City Charter. That information is
available on the Official Boundary Map and Official Zoning Map of the City,
together with plats, maps and other documents already on file with Tarrant
County. Listing the description in the City Charter would not add to the force of
any of these previous filings.
Section 5.05.
The change recommended ("Filing and withdrawing within time limits shall be
as prescribed by state law") is not necessary, since state law controls in any event.
Section 5.08.
The Committee suggests that a fifty—one percent (51%) majority be required in
all places; otherwise, a run—off election will be required. This is, of course, a major
change in the election procedure in the City. Currently, the mayor is elected by a
Ms. Terri Willis
August 2, 1994
Page 2
simple majority, which is defined under the law as fifty percent (50%) plus one
vote. The City is, I believe, free to define a majority as fifty-one percent (51%) if
it chooses to do so; however, you should be aware that in an election where one
thousand (1000) voters cast ballots, the one percentage point difference could mean
that the mayoral candidate would have to receive 510 votes - rather than 501 votes
- in order to be declared elected.
Obviously, the more radical change occurs in council member races, which
currently require only that the winning candidate receive more votes than any other
candidate in the race - i.e., a plurality. A home-rule city is authorized to require a
majority vote for its officers if it desires; however, this runs contrary to the
general rule contained in the Election Code that, unless otherwise provided, a mere
plurality is all that is required for election to a municipal office.
If it is the Committee's desire to require majority vote for all council
positions, I would recommend that Section 5.08 of the Charter be amended by the
deletion of the third sentence in its entirety, and by the deletion of the word
"Mayoral" from the fourth and sixth sentences of that section. In any event, such a
change will trigger a requirement for submission of same to the United States
Justice Department - Voting Rights Division for preclearance prior to its actually
taking effect after being approved by the voters.
Section 5.09.
The question arises whether a procedure should be inserted for appointment to
fill more than one vacancy on the city council or in the mayor's office. That
contingency has been covered in the first sentence of Section 5.09, which states
that a special election will be called to fill any vacancy in office. The appointment
procedure which follows was inserted to avoid the necessity for a special election in
the limited circumstances stated within that section. You will note that if a
vacancy occurs nine (9) months or less but more than 180 days before the expiration
of the term of office, the mayor must appoint a person to fill the term; however, if
180 days or less remain in that person's term, the mayor may appoint a person to
fill the vacancy. Unstated is the alternative that the vacancy can be allowed to
continue for the remainder of that councilmember's term. In any event, if more
than one vacancy occurs or if even one vacancy occurs with more than nine (9)
months left to go in that person's term, a special election must be held to fill the
vacant office.
Section 6.04.
The questions arises whether the language of Subsection 1 thereof implies that
the city manager must, at some time after his appointment, become a resident of
the city. After careful consideration, we do not believe that such a requirement is
implied by the language of that section. In any event, this would indeed be a proper
subject for an employment contract if desired by the city council.
Ms. Terri Willis
August 2, 1994
Page 3
Section 6.04.
The suggestion has been made to delete the provision concerning a grievance
committee and replace it with language establishing a civil service commission with
an appeal therefrom to the city council. While there is no legal impediment to this
procedure, this presents a major change from current procedure. Moreover, an
appeal directly from the civil service commission to the city council could
completely undermine the city manager's authority over all city employees. Some
council members could become extremely uncomfortable in handling such an appeal,
since it could be alleged that by determining such a personnel matter the council
member could be guilty of violating the provisions of Section 6.05 of the Charter,
which forbids council members from directing or requesting the appointment of any
person to or the removal of any person from employment with the city, or in any
manner taking part in the appointment or removal of employees of the city.
Section 6.08(1).
The question has arisen concerning appointment of a judge to fill out the
unexpired term of an elected judge who leaves office for any reason. As you know,
the Richland Hills City Council last year converted the Richland Hills Municipal
Court to a "Court of Record". Under the provisions of the state law governing
courts of record, if a vacancy occurs in the office of the elected judge of the court
of record, the city council must appoint a substitute judge to serve out the
remainder of the unexpired term of the elected judge. Therefore, this Subsection as
drafted should probably be amended only to provide that the mayor, with the
approval of a majority of the city council, may appoint one or more qualified
persons to act as substitute or temporary municipal judge.
The reason that the court of record was not created by charter amendment,
and the reason that the current procedure of electing the municipal judge is not set
forth in the Charter, is that it gives the city council maximum flexibility in
governing the city. As it stands now, if the city council chooses to abolish the
Richland Hills Court of Record, all the council must do to accomplish this is to pass
an ordinance abolishing the court of record. In that event, the elected judge of the
court of record is allowed to serve as the Richland Hills Municipal Judge until the
end of his term. If, on the other hand, the court of record were to have been
created by charter amendment, or if the election of the municipal judge were to be
mandated by charter amendment, the only way to change these procedures would be
by subsequent charter amendment, which may only be attempted once every two
years. The method which the city council has selected to deal with these issues
retains maximum flexibility for the council in dealing with municipal affairs.
Section 6.08(2).
A question has arisen on the procedure for removal of the municipal court
clerk. The four-fifths (4/5) council vote requirement which appears in this section
is consistent with the council vote requirement for removal of any
council-appointed employee governed by the city Charter.
Ms. Terri Willis
August 2, 1994
Page 4
Section 9.04.
The $5,000 bid amount has, indeed, been increased by recent state legislation.
The law now provides that contracts greater than $15,000 must be let by
competitive bidding, except for contracts for insurance, for which the bid amount is
still $5,000. State law currently allows cities, by charter, to be more restrictive in
this area, so the charter provision as it stands today is still valid and enforceable,
and requires competitive bids for contracts over $5,000.00. The amount may legally
be changed to $15,000 for all but insurance contracts and $5,000 for insurance
contracts if the Committee desires to make that recommendation and if the voters
approve same.
Section 14.01.
A question has arisen concerning the requirement that a member of the
Planning and Zoning Commission own real property within the city. Such
requirements have been held unconstitutional by the federal courts when applied to
candidates for city council positions; however, we have been unable to locate any
court decision discussing this requirement for membership on a city board or
commission. Based on the discussions in the reported cases, it is our opinion that
such a requirement would probably would be held unconstitutional if it were
challenged in federal court.
Article XV.
There is no state or federal law governing recall of municipal officers. The
only law of any kind governing recall of officers is found in the charter of each
individual home-rule city, and in court cases construing provisions of those charters.
Section 15.02.
In the fifth line of this section, the comma in between the words "event" and
"less" should be deleted. The entire second sentence of this paragraph should
likewise be deleted, as same is included obviously as the result of a printing error in
reprinting the new Charter after the last charter amendment election.
Section 15.04.
The Committee may wish to consider changes to this paragraph to tighten the
requirements for recall petitions. The Commission may wish to delete the language
"or subscription lists" from the first sentence, since the meaning of that term is
quite vague. The Committee may also wish to delete the last clause in that
sentence "or upon other papers attached thereto", since it is not unreasonable to
require that all signatures actually be on the form of petition, so there is no doubt
that the signers of the petition knew what it was they were signing. A recent
experience in another city represented by this firm revealed that several signers of
a recall petition there only found out later that the document which they had signed
was a petition demanding recall of an elected official.
•
Ms. Terri Willis
I -• August 2, 1994
Page 5
Section 15.05.
The Committee should give serious consideration to recommending a longer
time period within which the petition must be "presented" to the city council, in
order to allow sufficient time for the city secretary to verify the requisite number
of signatures on the petition. Other cities use a fifteen-day deadline period.
In addition, it would be helpful if the manner in which the petition is to be
"presented" to the city council were specified in the charter; i.e., must this
"presentation" occur during the course of a regular or special council meeting, or
can it be done by delivery of a copy of the petition to each member of the council?
If personal delivery is chosen, what happens if one or more council members are out
of town and, thus, unable to receive such personal delivery within the time provided?
Section 15.06.
In the same vein as above, the Committee may suggest that the manner in
which a public hearing is "requested" be specified. I have seen charter provisions in
other cities which require that such a request be made in writing at the next regular
council meeting after the petition is filed. If this method is selected, the deadline
within which to request such a public hearing must be extended to accommodate the
regular meeting schedule of the city council. This deadline should probably be
extended in any event to at least fifteen (15) days.
Section 15.07.
The time deadlines in this Section within which a recall election must be called
should likewise be extended. It generally takes a minimum of forty-five (45) days
between the time an election is called and election day for the city secretary to
properly perform all the functions required under the Texas Election Code for a
special election, including preparation of ballots, translation of ballots into Spanish,
conducting of early voting, publishing of legal notices, etc. The outside time limit
should be at least sixty (60) days, since it is tied to the date the petition is
presented to the council or the date of the public hearing. The timing and method
of "presentation" of the petition to the city council, as well as the timing and
method of a request for a public hearing, and the time limit within that hearing
must be held, must all be taken into account when setting minimum and maximum
time limits for holding the recall election; otherwise, unworkable situations can
arise.
Section 15.08.
The Committee may wish to consider, in paragraph (2) of this section,
clarifying the actual ballot language to be used in recall elections, which has always
been a source of some confusion. The Committee may wish to consider changing
the language to "FOR the removal of (name of person) from office by recall" and
"AGAINST the removal of (name of person) from office by recall". This should
remove some of the confusion concerning the effect of a vote for or against the
recall of an officer.
Ms. Terri Willis
�-, August 2, 1994
Page 6
Section 16.02.
Any confusion concerning concerning the term "qualified voter" as used in the
initiative and referendum sections could be clarified by requiring that "Said petition
must be signed by qualified voters of the city, as defined in this Charter, equal in
number to . . .". That should remove any question whether Section 5.05's definition
of qualified voter applies to these sections. I do not find the requirement in Section
15.02 that the petition only be signed by registered voters which is reflected in the
Committee's minutes. The only references in that Section appear, likewise, to be
to "qualified" voters.
Section 17.05.
The Texas Open Records Act has, indeed, declared most city records open to
public inspection; however, the exceptions listed in Section 17.05 are still valid, and
there are many others contained in the Act. Moreover, at every session of the
Legislature since the Open Records Act was originally passed, the Legislature has
amended the Act by either adding more exceptions to disclosure or by tinkering
with the definition of an open record. Because of this constant modification by the
Texas Legislature, it would not be advisable to include in the Charter the current
statutory definition of an open record or the list of exceptions, since these will
probably change at each legislative session in the future. As soon as the Legislature
changes the definition to be at variance with the Charter, the Charter becomes
unenforceable unless and until the voters amend it to comply with the next version
of state law. Since the Section currently refers to "other records which are closed
to the public by law", it necessarily incorporates all definitions of open records and
exceptions to open records contained in the state law, and will continue to refer to
that law even after the law changes.
Section 17.08.
Due to the requirements of state law that contractors on public works projects
furnish payment bonds, together with the city's internal policies concerning
contracting, it is quire difficult for a person or company to acquire a lien against
the city. The most a claimant can acquire is a lien on the funds due to the general
contractor. I am unsure of the nature of the question concerning the Lavon Street
problem; however, those problems arose from a series of actions by various city
officials which varied the requirements of city ordinances. In addition, state law
prohibits a city from requiring a performance bond or a payment bond on public
works projects of less than $25,000.00; thus, the Lavon Street problem probably
could not have been cured by use of a bond, since I believe that project cost less
than $25,000.00.
Section 17.11.
The question has been posed whether the city has a right to "negate" a debt
owed to the city. The city has the power to forgive some debts; however, the city
council must always find that a public purpose is served before doing so. Most
municipal lawyers agree that a city may not, without specific statutory
authorization, forgive debts in the form of taxes owed to the city, or penalty and
Ms. Terri Willis
August 2, 1994
Page 7
interest thereon. This charter provision, however, reserves the city's rights to
offset any taxes, penalty, interest or other debt owed to the city (such as for water
or sewer service, etc.), against any debt that the city owes to the same person or
entity. Moreover, this provision preserves the city's right to offset even though the
person to whom the city owes the debt transfers or assigns it to someone else. In
other words, if the city owes a contractor $1,000, and the contractor assigns that
debt in return for immediate cash, the city may still offset against that debt in the
hands of the assignee any amounts that the contractor otherwise owes to the city
for taxes, permit fees, etc.
Section 17.13.
I have seen these provisions in other city charters; however, I have not seen any
court cases discussing whether or not such a public officer or employee is entitled
to due process in this situation. The Committee may wish to recommend the
change to this Section providing that, rather than immediately forfeit his position,
such officer or employee be immediately suspended from his position, with pay, that
within a very few days thereafter he receive specific, written notice detailing the
charges against him, and that within another relatively short of time a public
hearing be held to determine whether those charges are well founded and whether
he should be immediately removed from his position.
Section 17.15.
After extensive research, I do not believe that this Section violates either the
state or federal Constitutions. First, the Section - or at least Subsection (1) - is
narrowly drawn to restrict political activity in connection with a city office, rather
than for any political office generally. Secondly, it does not seek to restrain any
employee's freedom of speech except in the very limited instances listed in the
Section.
On a more general, due process note, the provision also appears to pass
constitutional muster. A public employee only has due process rights if he is found
to have a "property interest" in a continued employment. In the State of Texas, all
employees - including public employees - are presumed to be employed "at will",
which means either employer or employee may terminate the relationship at any
time and for any reason or no reason at all. Unless some contract or other provision
gives an employee greater rights than this - such as being subject to dismissal only
"for cause" - no property interest arises in continued employment. The Richland
Hills Personnel Policies Manual clearly states all employees are employed only on
an "at will" basis. Thus no property rights arise in continued employment and,
therefore, employees are not technically entitled to "due process" before their
employment is terminated.
Ms. Terri Willis
•-.• August 2, 1994
Page 8
Section 17.16.
The question posed is whether the city should specifically state in its Charter
that it has adopted a model building code or other code. The answer is no, since the
city adopts its model codes by ordinance and needs to retain the flexibility to
amend those codes or adopt new, updated codes by ordinance as well. The city
currently has in effect not only a model building code, but also a model mechanical
code, electrical code, plumbing code, fire code and a demolition of dangerous
structures code. Each of these codes is updated on a periodic basis, and the city
should probably retain the flexibility to adopt and make customizing amendments to
any of these new codes as new updates are made available. In any event, it is not
necessary to make specific reference in the Charter to the particular code adopted
in the city.
Section 17.19.
I refer you to the discussions under Section 17.08. Under state law, the city
must require a performance bond on public works contracts on more than
$100,000.00, and a payment bond for public works contracts in excess of
$25,000.00. The law further states that a city may not require a payment bond on a
public works contract of less than $25,000.00. That law was changed recently to
increase the amount of the public works contract triggering a performance bond
from $25,000.00 to $100,000.00. This is another instance in which the city needs to
leave itself flexibility to change its requirements as state law changes, rather than
locking itself into a position with a city charter provision which may only be
changed by charter amendment once every two years.
Summary
I have endeavored to be as brief as possible in responding to the questions posed
by the Charter Review Committee. If further research or discussion is desired on
any of these subjects or on any other subjects coming before the Charter Review
Committee, please advise the undersigned and I will endeavor to get some answers
as soon as reasonably possibly. Please always feel free to call if you have any other
questions.
Yours tyt ly,
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Paul F. Wieneskie
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