It’s election time again in Austin with Prop A and B, both about police oversight, on a May 6 ballot. Early voting is already underway.
Prop A was put on the ballot by police accountability activists while Prop B looks like a sneak attack from the Austin Police Association (APA), disguised as increased oversight. APA has been widely accused of backing a deceptive petition drive to get the measure, Prop B, on the ballot. For example KXAN reported, “Recordings shared with Equity Action [the group who petitioned to get Prop A on the ballot] showed canvassers saying they worked for the group when they did not.” The Statesman editorial board wrote that the APA president “did not respond to invitations to meet with the Editorial Board.”
Being exposed as having used deceptive tactics to get a proposition on the ballot, plus the police union’s top official refusing to talk to a daily newspaper editorial board, are among the type of things that will sink a proposition. That will likely be the fate of Prop B. On the other hand, Prop A has received a wide array of endorsements, including from the Statesman and Chronicle and will likely sail through to victory.
Prop A, however, features some legal challenges which I will venture to say that the overwhelming majority of Austin voters know little, if anything, about. The Statesman, in their editorial endorsing Prop A and opposing Prop B did report: “It’s important for Austin voters to understand that not everything included in Prop A will automatically become APD policy if the proposition passes. The City Attorney’s Office has flagged some provisions as needing approval by the police union as part of a new police contract before they could become policy.” The Statesman didn’t offer any specifics, but one reason for that is that the City Attorney’s Office doesn’t tend to make its legal opinions public. The Statesman concluded, “but a victory for Prop A and defeat of Prop B would give the city council leverage in negotiations by sending the message that voters want Prop A’s measures included in the next contract.”
The Statesman is correct that some Prop A provisions will require agreement from the APA as part of a contract negotiation. I am very aware of that because I was a Council leader in getting the first civilian police oversight in Austin. That was back in the late 1990s when oversight was not as popular as it is now. I know from those negotiations that police unions, in the decades before our efforts, got state laws passed which limited what oversight can do and what information police departments can be compelled to provide. These obstacles were very frustrating to discover and resulted in less strong oversight measures than I, or most of the Council at the time, would have liked. The only way to get around those rules and laws is for police unions to agree to give them up as part of a contract negotiation under the state’s Meet and Confer law. That’s what we did in the late 1990s to deliver the first civilian oversight in Texas.
The Statesman’s take that passing Prop A will “give the city council leverage in negotiations” is definitely one way of looking at it. At the same time Prop A dramatically cuts back on the Council’s negotiating authority. Those who are concerned about governance and representative government might have some concerns about that.
In particular there is a clause in Prop A which mandates: “The City Council shall not recommend or approve any contract or agreement concerning the employment of any officer or civilian within the Austin Police Department, unless such contract or agreement is consistent with and fulfills each provision of this Chapter.” That clause is further strengthened by the following clause: “Prior to any City Council action to approve any proposed agreement affecting Austin Police Department personnel, the City Attorney shall certify whether or not the proposed contract is consistent with and fulfills each provision of this Chapter.” There are different ways to look at this. One is the Statesman editorial board take that it “would give the city council leverage in negotiations.” That is true in the sense that the Council could say that Austin voters have spoken and the union needs to accept all the elements of Prop A.
Another way of looking at it, however, is that Prop A will take away the power of the elected Mayor and Council to negotiate — powers that they now have. This, and other parts of Prop A, could lead to years of legal quagmires and/or contract standoffs. Also, at some point in time, the Council might decide that one of the measures in Prop A does not do what it intended, or has unintended consequences. Prop A, however, would lock this and future Councils into insisting on including all provisions of Prop A in negotiations. (The full text of Prop A can be found here.)
It’s up to Austin voters. Chances are good, however, that Council Member Alison Alter will end up having been prophetic when she said that the best and quickest way to guarantee strengthened oversight was to approve the four-year contact that came before Council in June. (Council Member Mackenzie Kelly also supported the four-year contract.) That contract was the result of a year-long negotiation between the City and the APA. It included numerous oversight measures that are included in Prop A. The Council majority, however, rejected the four-year contract and opted for a one-year contract, arguing that that was the best way to respect voters and the petition process.
OK, let’s go on to another item.
The Bills and Fred Strike Again
On Monday, April 24, attorneys Bill Aleshire, former Travis County Judge; longtime Save Our Springs Association leader Bill Bunch; and Fred Lewis, best known recently as a leader of Community Not Commodity, filed suit against the Mayor, City Council and Interim City Manager, in their official capacities, seeking an injunction to stop the Tax Increment Reinvestment Zone (TIRZ) associated with the Statesman PUD (Planned Unit Development; an image of the proposed development is at the top, taken from earlier Council backup). The previous Council approved the TIRZ and the PUD in December as one of their last acts, a little over a month before several of them left office.
A TIRZ allows some portion of increased property tax revenue from a development to be pumped back into paying for infrastructure at the development. In the case of this TIRZ it could divert $354 million in property taxes over 19 years back into the development.
The newspaper itself has no interest in the PUD, but it is proposed for the site where they used to be located, on the south shore of Lady Bird Lake. That tract is owned by the Cox family, whose company formerly owned the Statesman.
The three lawyers are well known in Austin political and governmental circles, as are some of the plaintiffs they represent. According to a press release, the plaintiffs in the suit are former State Senator Gonzalo Barrientos, former Council Member Ora Houston and Allandale resident Faye Holland — all taxpayers in the City of Austin. Also plaintiffs are the Save Our Springs Alliance and Taxpayers Against Giveaways, the latter the lead group in opposing the Statesman PUD as it went through the City system.
The suit revolves around a clause in the state law governing TIRZs which says a TIRZ can be created “if the governing body determines that development or redevelopment would not occur solely through private investment in the reasonably foreseeable future.” The three attorneys say it is ludicrous to think that the south shore of Lady Bird Lake could not be developed without taxpayer assistance. Their press release utilizes a quote from then Mayor Steve Adler to argue their case. Adler said at the December 1 hearing on the PUD: “No one is saying that this area wouldn’t develop if we didn’t do this. It’s just not going to develop the way that we would want it to develop.”
Aleshire says, “The City used the wrong legal standard for the TIRZ. The standard is whether the land would redevelop on its own, not whether it would redevelop in some way different than the city wants. If that was the legal standard, then a TIRZ could be used in every development, to the detriment of the rest of the taxpayers who must pay more taxes to support the general operation of the City.”
Aleshire told the Independent that the suit is based on a legal doctrine called “ultra vires,” meaning, “without authority.” He explained that this is why the plaintiffs are suing the Mayor and Council Members. In such a case, continued Aleshire, one “does not sue the government,” but instead sues the officials who took the action.
And why sue the Mayor and Council Members who were not present at the time? That’s because, says Aleshire, they stepped into the role of their predecessors. Also, the Mayor and all Council Members are on the TIRZ board.
As noted earlier, the suit is in their “official capacity.”
“It’s nothing personal,” said Aleshire.
Aleshire added that the TIRZ is a “kickback scheme” in which the property owners would pay property taxes, but then have some of that money returned to the development under the TIRZ.
Richard Suttle who represented the developers on the project did not respond to a request for comment.
It remains to be seen how the TIRZ case will turn out. But, speaking of disasters that the previous Mayor and Council left behind, let’s turn to what could have been their legacy project, the light rail system approved by voters in November 2020.
State Representative from Lakeway and former Austin Council Member Ellen Troxclair is carrying legislation that would force a new vote on the rail project, given the large cost overruns and Troxclair’s contention that formation of the Austin Transit Partnership (ATP, the group created by the City and Capital Metro to oversee rail construction) was an end run around state law. According to ATP the cost has risen from the $7.1 billion cost that was advertised to voters to an estimated $11.6 billion now — and, that’s before a rail had been laid or a spike driven.
The Statesman reported last week that Mayor Kirk Watson ceased his opposition to the bill after it was approved by a House Committee. The Statesman’s Ryan Autullo reported, “Watson’s focus on the bill has shifted from defeating it to limiting its effect.” As Autullo noted, the committee approval, and Watson’s withdrawal of opposition, do not necessarily mean the bill will pass. It has to continue through the legislature’s tortuous process.
Although Watson seems confident that rail could win again in a follow-up election, the rail project would face considerable hurdles in a repeat election. For one, not only has the cost increased, but the promised routes are being drastically shortened as a result. As a longtime rail advocate who wanted to be able to ride it from my area of South Austin to downtown before I die, I hate to say this. But, the price increase and the shortened routes sound like an exact example of the anti-rail slogan in the 2000 election: “Costs too much, does too little.”
There’s also the question of trust, a leftover from the (Greg) Casar-Adler regime. It’s hard not to suspect that the previous Council knew they were not putting enough money on the ballot, but low balled the ballot measure because they thought more money would not pass. It certainly seems that’s what ATP Director Greg Canally was implying when he frankly said, at the time the shortened routes were announced, “The days of overpromising are over,”
Then there’s ETODs, (Equitable Transit Oriented Development), which looks like a Trojan Horse for launching another attack on central Austin neighborhoods. ETODs are mile wide circles the City is proposing to draw around all rail stations and rapid bus stops, within which the City plans to — among other things — change land development rules, upzone single family properties, and change the Imagine Austin Comprehensive Plan to make it consistent with the new rules. (We don’t have room to go into details here, but have covered that in depth before.) Unless the Council straightens out the ETOD mess it will cost a lot of votes; and it may already be too late.
But, Watson shouldn’t be counted out yet.
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