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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, '77 hairman CRIBBS & McFARLAND A PROFESSIONAL CORPORATION ^ ATTORNEYS AT LAW t ♦ JAMES A. CRIBBS 1000 WEST ABRAM D/FW METRO TEL: (817) 461-2000 BOB Mc FARLAND P. O. BOX 13060 TELECOPIER: (B17)276.7910 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, ;`—(-4147 6ett,0��G Paul F. Wieneskie PFW/bh/579pfwlib cc: Steve Hughes, City Manager rncL r cask v C!'eri,kf(