Well, let’s pick up right where we left off on the proposed City Charter amendments that would increase the powers of the Mayor and Council Members — at the expense of the City Manager and the citizenry. As noted in previous installments, the Austin Independent is looking at these amendments in part to illustrate the current atmosphere and attitude at City Hall, especially on the Council; and also because the Mayor and Council majority intend to try again to put these items on the ballot. That means these amendments will eventually go to the voters — as long as the Council can manage to legally put them on a ballot. (Part 1 of this series can be found here and Part 2 here.)
After this article we’ll turn our focus to the Mayoral and Council elections; along with a few other items that haven’t gotten enough attention.
Requiring citizen initiative and referendum elections to be held in November of even-numbered years
This is the proposed Charter amendment that would likely have the largest impact on the future of Austin. It would require that “initiative elections and citizen-initiated charter amendment elections must be held on the next available November election date that occurs in an even-numbered year.” This proposed Charter change was recommended by the Council appointed Charter Review Commission (CRC), but originated with the Council. By that I mean, in its resolution creating the CRC, the Council noted that it intended to put on the November 2024 ballot a “limit on citizen-initiated changes to the City Charter to November elections with a stated preference of holding elections on presidential election years.”
This proposed amendment would apply specifically to elections where citizens gather petitions to overturn or change City policy, or to change the City Charter. The City Charter grants these powers to the citizenry as a check on the powers of the Council. Currently, the City Charter states that when a citizens’ initiative is certified as having gathered the required number of signatures, the City Council must call an election on the measure for “the next allowable election date authorized by state law.” Authorized election dates in Texas are the first Saturday in May or “the first Tuesday after the first Monday in November.”
The subject of November elections is a broader topic which we will discuss briefly further down. For now let’s examine the specific effects this amendment would have on citizen initiative efforts. A core issue here is that citizen initiatives tend to have urgency and immediacy to them. But, under the proposed Charter amendment, citizens would turn in their petitions and then be forced to wait until a November election in an even-numbered year.
For a sample of some of the potential consequences, let’s look at one of the more famous citizen initiatives in Austin history, the Save Our Springs (SOS) Ordinance which passed on August 8, 1992. (At that time state law also allowed local elections in August.) The August election date resulted from the Council majority at the time — that majority being the infamously recalcitrant RULE (Reynolds, Urdy, Larson and Epstein) coalition — defying a court order to set the election in May. May was the nearest available date after the petition was certified.
Barton Springs Pool – photo from City of Austin website
During the Council majority-induced delay developers filed hundreds of applications for development over the aquifer that did not meet the requirements of the SOS ordinance. These applications were then grandfathered under state law. Aquifer developers could have filed some of these applications before a May election, but the three month delay allowed them to file many more. The delay until August gave developers an extra three months to file grandfathered applications. Thus, a large number of developments were exempted from the SOS Ordinance once it passed.
Ultimately, the SOS Ordinance passed with 64% of the vote. Hundreds of development projects, however, were able to develop under older, weaker regulations and avoid the SOS Ordinance.
If the Charter had required elections in November of even-numbered years, aquifer developers would have had three more months (beyond August) to file grandfathered applications. The delay would have been limited to three months because it so happened that the SOS petitions were turned in during an even-numbered year. If it had instead been an odd-numbered year, then more than a year and a half would have elapsed between the time the petitions were certified and an election was held. In the case of SOS this would have made it possible for hundreds, probably thousands, more aquifer developments to escape the water quality protections that the overwhelming majority of Austin voters clearly wanted developers to follow. It would have done lasting damage to the aquifer and springs, beyond what the RULE Council managed to do.
The SOS Ordinance happened because thousands of Austin citizens believed that the City Council was hostile to the health of the springs and instead carrying out the wishes of aquifer area developers. The citizens reacted to events at the time, regardless of whether it was an even or odd-numbered year.
There have been more recent citizen initiative elections that did occur in even-numbered years, and would have had to wait more than a year, after their petitions were certified, for an election to be held.
Voters in May 2021 reinstated the longstanding regulations that kept people experiencing homelessness from pitching tents virtually anywhere they wanted. That was a vote to overturn the actions of then Mayor Steve Adler and the Council majority. In 2019 voters reinstated the “camping ban.”
The proposal to reinstate the camping restrictions made it on the ballot after a petition drive by Save Austin Now. If the proposed Charter amendment had been in place then, the electorate would have had to wait until November of 2022, a year and a half later, to decide the matter. This was also the election date for the aforementioned Charter amendment that moved mayoral elections to presidential election years and also for the ill-fated proposal to switch to a strong mayor form of government. All would have had to wait an additional year.
It is not possible to know what future citizen initiatives will be undertaken and which will gather enough petitions to force an election. It is certain that, if it passed, this Charter amendment would bring a tremendous shift in the balance of power between the Council and the citizenry. For example, every future citizen initiative would have to factor the November of even-numbered years requirement into their strategy. On the flip side future Council majorities could time unpopular measures to try and weaken any citizen initiative against that measure. That’s just a few of the impacts.
Why November of even-numbered years?
So what’s the deal, readers might ask, with having elections in November of even-numbered years? Holding local elections in November of even-numbered years has become a cause celebre among “progressives.” That started in November 2012 when voters approved the current 10-1 single member district system. A separate Charter amendment on the same ballot called for switching Mayor and Council elections to November.
More moves to November followed. In May 2021 voters approved a Charter change to hold future mayoral elections in Novembers of presidential years. That was brought to the ballot by the same group who proposed a switch to a strong mayor form of government. Changing mayoral elections to presidential years won with two-thirds of the vote. That’s why Kirk Watson’s current term is only two years. The strong mayor proposal went down, with 86% voting no.
The core argument for November even-numbered year elections is that more people vote then. That is often stated as more people of color vote in November. More people vote in November because the presidential race is held every four years in November, while statewide offices, Congressional races and other state offices are held in the other even-numbered year Novembers.
Prior to the November 2012 Charter changes, the City occasionally held bond elections in November. But, for many decades Council elections were held in May, with runoffs following in June, if necessary. By the way, runoffs for November elections are held in December when turnout tends to be even lower than in June runoffs. The core argument for May elections is that they allow voters to focus on City business and local issues, instead of having City elections toward the end of very long ballots featuring scores of national and state offices.
The terrain can be tricky for advocates of May elections because November backers accuse them of wanting less people to participate. Often this is accompanied by the charge, or insinuation, that those backing May elections just don’t want more minority citizens voting. In other words, people who favor May elections want fewer people to vote, and might just be a little racist too.
In other words, people who favor May elections want fewer people to vote, and might just be a little racist too.
This makes some advocates wary of opposing November elections. That category of folks evidently does not include Bill Bunch, SOS leader during the 1992 election and now. Bunch boldly blurted out to the Council on July 18 (when Council took testimony on the proposed Charter amendments). “They (the Council) are hoping uninformed voters overwhelmed by a lengthy ballot loaded with other state, federal, and local elections will simply vote ‘yes’ to major City Charter changes hidden behind vague and friendly-sounding ballot language.” Bunch also said that “the noise and distraction levels (accompanying the November ballot) and the length of the ballot will be literally off the charts.”
Bunch was referring to the Council’s attempt to get all 13 proposed Charter amendments on the ballot, including the one that would move elections on citizen initiatives to November of even-numbered years — even if the petition drive were completed in an odd-numbered year.
Bunch’s comments also get at the overall debate on when to have local elections. For instance here is a list of some of the offices that will be on the November 2024 ballot; that voters will have to work through before getting to the City items: the presidential race; one US Senate race; a Congressional race on each ballot; races for the Texas Supreme Court; the Court of Criminal Appeals; the State Board of Education; State Senate; State Representative; Court of Appeals; District Courts; County Courts-at-Law; Travis County Sheriff; Travis County Attorney; Tax Assessor-Collector; two County Commissioners; and constables and justices of the peace in some districts.
There will also be a Travis County initiative to fund child care for low income families.
Only then comes Austin’s Mayoral election and City Council elections in five districts. Below that on the ballot will be school board races in some districts, including a tax increase election proposed by the Austin Independent School District Board.
That’s a lot and in my view the overall discussion of when to hold City elections is worth having again. For right now we will keep our focus on the subject at hand, City Charter amendments aimed at increasing the power of Council Members. And, that means moving on to the next proposed Charter amendment.
Eliminate ban on Council Members accepting contributions to pay off campaign debt while still in office
Then there’s the the proposed charter amendment that would remove “the restriction that officeholders must wait until after leaving office in order to solicit and accept political contributions to pay unpaid campaign expenses, or to reimburse campaign expenditures made from personal funds.”
In other words, the Charter currently prohibits Council Members from raising funds except during election periods. This can strand lame duck Council Members with campaign debt that they cannot raise funds to pay off while in office. This of course only applies to those Council Members who incur debt during their campaigns.
This one was brought forward by Council Member Leslie Pool who leaves office in January (photo at top of Pool at a HOME press conference, with Council Members Paige Ellis, Zo Qadri and Chito Vela behind her; photo by Daryl Slusher).
The charitable way of looking at this is that it would help prevent Council Members from leaving office owing debt or owing money to vendors or campaign workers. And, to be fair, Austin does have probably the toughest campaign finance laws in Texas; arguably unreasonable in some instances.
Another way of looking at it, however, is that this would remove an existing rule that prevents lame duck Council Members — who are term limited and/or do not plan to stand for reelection — from soliciting funds from people with business before the Council, without ever having to face voters again. That particularly seems a bad look for a proposed change to the Constitution of the City that was passed on an “emergency” basis and also in a manner that a Judge ruled was a clear violation of the Texas Open Meetings Act.
In fact that could be said for all the proposed Charter amendments discussed in this series.
A complicating factor here is that this amendment’s sponsor, Council Member Pool, is a lame duck Council Member who leaves office in January. She also has a campaign debt of $41,000, officially called “principal outstanding total unitemized loans,” as reported on her most recent Candidate – Office Holder (COH) report. Pool is responsible for that campaign debt. So, at least to me, this raises the issue of whether Pool stood to benefit personally if the amendment she proposed would have passed.
The Austin Independent confirmed with City legal staff that if the amendment had remained on the ballot, and passed in November, it would have gone into effect immediately after the Council canvassed the vote, a few days after the election. This would have given Pool plenty of time to start soliciting contributions. It is not clear, however, whether this amounts to an ethics violation or the appearance of one.
The City of Austin’s Code of Ethics states, “A City official or employee may not participate in a vote or decision on a matter affecting a natural person, entity, or property in which the official or employee has a substantial interest.” City rules also speak to avoiding even the “appearance” of a conflict of interest.
The City of Austin’s Code of Ethics states, “A City official or employee may not participate in a vote or decision on a matter affecting a natural person, entity, or property in which the official or employee has a substantial interest.”
One complication is that any other Council Member could potentially, in the future, end up in the situation in which Pool is in now, i.e. leaving office with a campaign debt.
The only other Council Member leaving office in January, along with Pool, is Alison Alter. On her most recent COH report (July 15) Alter listed $0 debt under “Principal of outstanding total unitemized loans.” She abstained on Pool’s Charter amendment proposal.
In all, five Council Members reported “unitemized loans” on their July 15 reports. The total amount reported by the five was $106,578.69. The bulk of that debt was owed by Pool and Council Member Ryan Alter.
Ryan Alter leads that pack with a reported debt of $46,675, even more than Pool. Chito Vela reports a debt of $10,500. Vanessa Fuentes and Zo Qadri report debts of less than $5,000. None of these Council Members are in the lame duck predicament that Pool faces. They are either up for reelection this year or eligible to campaign for reelection again. Council Members are allowed to put funds raised during campaigns toward campaign debt. Because Pool is term limited, she thus does not have another election in which she can raise funds. Other Council Members could potentially find themselves in such a predicament later, but none face that situation now.
So, it’s a little complicated, but I felt there were enough questions that I contacted Leslie Pool for comment. I noted that in my view, “the proposed Charter amendment that you brought forward would have benefited you personally” and asked her views on whether this violated City of Austin or state ethical rules.
Pool replied, in writing, “To your point about personal benefit: any Council Member who would have campaign debt would be able to fundraise publicly, capped at the amount of the debt. As it stands, and after the two successful runs at eliminating the fundraising black-out period (which you may remember I sponsored the one-year limit after the six month timeframe was ruled unconstitutional), one cohort of CMs (Council Members) still cannot fundraise: and that one cohort is any incumbent who is not running.”
“To your point about personal benefit: any Council Member who would have campaign debt would be able to fundraise publicly (if her proposed Charter amendment passed), capped at the amount of the debt.” Leslie Pool responding to an inquiry from the Austin Independent
At our request Pool also provided some history of how the rules reached this point. She explained that — beginning with legal challenges from former Council Member Don Zimmerman — the rules restricting Council fundraising have been whittled away by courts. Pool further explained, “That left one class/category of city elected (officials) who cannot solicit donations: incumbents who are not running who have a carryover debt. There are some who carry debt who are no longer on Council.” Pool also said that she tried to get some limits reinstated.
Pool’s history appears to be accurate, but she did not directly address whether she had a conflict of interest when she proposed the amendment. We asked her again if she wanted to comment more specifically on whether she considered her introduction of the proposed Charter amendment a conflict of interest. She did not reply.
Repealing Requirement that Council Meet Every Week
Now, let’s take up the final proposed Charter amendment that we will cover in this series. It proposes to eliminate the City Charter requirement that the Council must meet weekly. That is easily gotten around because the Council is allowed to simply cancel meetings. The proposed Charter amendment seeks to eliminate the need to officially cancel meetings..
At first this seemed to me like a a Charter amendment that could be a win for virtually everybody. The Council would get more time off or more time to take care of business off the dais. For the general citizenry, meeting less frequently could possibly mean that the Council will do less damage (well, OK, probably not). Interested citizens would not have to keep up with as many Council meetings. And, City staff who have to attend Council meetings would have more time to carry out their basic duties, rather than wait at the Council Chamber for their item to come up on the agenda.
Sure, most of this is possible already because the Council can just cancel meetings. But, why not make it official and enjoy a rare referendum item on which almost everyone can agree.
At least one person, however, is not joining the coalition I envision above. That is Bill Bunch.
Bunch said at the July 18 Council meeting, “You’re not even meeting two times a month. I mean, look at this absurd agenda. We have 180 some odd items (it was 188). Sure, take some vacation time, but the Council used to meet fairly weekly when they were being paid literally nothing. Now, you’re making quite a bit of money. You have a huge staff and now we have these enormous (number of) agenda items.”
Well, I have to acknowledge that Mr. Bunch makes some valid points there. He’s right about Council pay being way up compared to their forebears of yesteryear (like me). That’s even though each of them represents one-tenth as many people as at large Council Members did. Even more important is his point about huge agendas. That almost automatically guarantees that some items won’t get the attention they deserve.
Nonetheless I predict that this amendment would pass, despite Bunch’s objections if and when it goes to voters.
So stayed tuned. And remember, the Mayor and Council majority plan to put these proposed Charter amendments on the ballot at some point.
– I appreciate readers who directed my attention to other proposed Charter amendments that do not necessarily fall under the Council power grab category. For now, however, due to space and time constraints I am only focusing on the power grab category. If and when the Council successfully puts the items on the ballot, we will cover all the proposed amendments. And I reserve the right to cover any of them before that as well.
Correction: In Part 2 of this series I reported that in 2016 a group gathered signatures to recall then Council Member Ann Kitchen, but that the City Clerk ruled there were not enough signatures to force the recall. In fact there were enough signatures, but the Clerk rejected the petitions because the group failed to notarize the pages of petitions, as required. Council Member Kitchen framed this as the petitioners refusing to officially attest to misleading statements they made in collecting the signatures. Thank you to the reader who brought this to my attention.
____________________
Folks: Local, independent journalism is very poorly funded. That is definitely the case with The Austin Independent. So please consider subscribing and/or donating. Click here. Funds we receive will be used primarily to try to increase our readership base.
To receive notification when the Austin Independent posts stories, to subscribe, or to write to the editor please send us an email under Contact on the home page,or click here.
The Austin Independent, a publication of The Austin Independent, LLC
All Rights Reserved