In our last installment I reported that the 13 City Charter amendments proposed by the Austin City Council won’t be on the November because the Council was found to have violated the Texas Open Meetings Act, again, when they set the ballot. The Mayor and Council majority still intend to put those proposals on the ballot at some point, if they can manage to do so legally. So, before we leave this episode behind, let’s look at the substance of one category of those amendments. That is the category of Charter amendments which would increase the powers of the Mayor and Council and/or make their privileged perches just a little bit more secure. It could be called a power grab. Those constitute almost one-half of the proposed Charter amendments.
Another reason to look at these items is that it provides a glimpse into the mindset of a supermajority of our elected leaders on the Council.
A reminder before we dive in: the City Charter is the governing document of the City, the City’s equivalent to the United States Constitution. To some old fashioned people like me that means that those elected to represent the City of Austin should view the City Charter with a certain amount of reverence and respect, and not use the amendment process just to increase their own power, or to make their political position more secure. Clearly that type of thinking is out of fashion at today’s City Hall, at least among the Mayor and a super majority of the Council.
I should note that some of these proposed Charter amendments originated with a Charter Review Commission (CRC) whose members were appointed by the Council. Council Members tend to have influence over those they pick for the Commission and presumably what they support. City staff proposed some Charter amendments as well. Additionally, the Council has the authority to add proposed charter amendments of their own choosing. The Council also has the power to reject or ignore the recommendations of its CRC or the staff. These are all powers consistent with the City Charter and the normal process of governing. It’s how the Council utilizes those powers that we examine here.
For starters here’s a list of the proposed City Charter amendments we will discuss. We will also cite their source; Council, staff, CRC or some combination.
1. Require more signatures to force a recall election – from the Charter Review Commission (CRC). Mackenzie Kelly voted no on putting this on the ballot.
2. Eliminate the requirement that the Council pass its rules by “ordinance” – evidently from staff. Alison Alter abstained on the vote to put this one on the ballot.
3. Change the Hiring, Firing and Reporting Structure of the City Attorney – proposed by Council Member Vanessa Fuentes. Kelly voted no on putting this on the ballot, with Alison Alter and Paige Ellis abstaining.
4. Require citizen initiative and referendum elections to be in November of even numbered years – from CRC at direction of Council. Kelly voted no and Alison Alter abstained.
5. Eliminate ban on Council Members accepting contributions to pay off campaign debt while still in office – from Council Member Leslie Pool. Alison Alter voted no.
6. Remove requirement that Council meet every week – from City Staff. (Due to length considerations, #s 4-6 will be covered in an article to follow)
Require more signatures to force a recall election
Perhaps this one doesn’t technically qualify as increasing the power or authority of Council Members. Instead it gives them some extra insulation from the voting, or petitioning, public. That would be done by increasing the number of signatures required to force a recall election to “at least 15% of the qualified voters of the respective Council district, instead of the current 10%.”
The core question here is: what problem is this trying to solve? It’s not like there have been a spate of recalls. I asked the City Clerk’s Office when the last recall election in Austin occurred. They responded, “Research does not indicate there have been any recall elections in Austin.” That’s as in never.
The core question here is: what problem is this trying to solve?
Periodically cries arise for recall of the Mayor or a Council Member, but nothing comes of it. The closest I am aware of Austin having a recall election was in 2016 when super well financed forces sought to recall then Council Member Ann Kitchen because of her leadership in trying to regulate ride-sharing companies. The group trying to recall Kitchen turned in signatures, but the City Clerk determined that they did not have enough to force an election. The effort fizzled.
So there has never been a recall election in Austin, but the Council is trying to make it harder to force a recall election.
Mmmm. Have you guys done something we don’t know about?
Or, perhaps the Council Members are planning to do something really unpopular.
Or, maybe they’re worried that homeowners are going to start figuring out what the Council did with the HOME initiative, or by allowing 90 feet buildings next to people’s homes in formerly single family neighborhoods.
It should be entertaining to see what arguments the Mayor and Council make if and when they manage to legally put these items on the ballot.
Support for this item is not confined entirely to the Mayor and Council majority. One speaker at the July 18 Council meeting, Chris Harris of Equity Action, spoke in favor of the recall amendment. Harris said, “It is important that we also see changes to the recall system, particularly because of the inequitable nature of how easy it is to recall members in East Side, primarily people of color, districts.”
All Council districts are subject to the same recall rules. Harris did not explain why he thinks it is easier to recall Council Members in districts that are “primarily people of color,” especially since no one of any race has ever faced a recall election in Austin. The Austin Independent reached out to Harris for an explanation; through Equity Action, whom he said he was representing when he spoke. We did not hear back.
Eliminate the requirement that the Council pass its rules by “ordinance”
Another proposed amendment would remove the Charter requirement that the Council “determine its rules and order of business by ordinance.” This one might seem technical or insider, and it is. It is also directly related to the Texas Open Meetings Act (TOMA) lawsuit won by Bill Bunch earlier this summer.
One point on which Bunch won, and the City lost, was that the Council was not following its own rules. Having rules to guide Council meetings is one of the requirements of the City Charter.
Austin Mayor Kirk Watson
If this Charter amendment passes Bunch won’t be winning any more court rulings about the Council failing to follow its own rules. And, presumably, the Council will just make them their rules as they go along. By the way, the Council can already waive its rules with a simple vote.
If this Charter amendment passes Bill Bunch won’t be winning any more court rulings about the Council failing to follow its own rules.
This amendment has mysterious origins. Its source was not described in the Council backup. It did not come from the CRC. It was said during brief Council discussion that it emanated from staff. We submitted a question to staff seeking to find out more, but did not hear back by press time.
Change the Hiring, Firing and Reporting Structure of the City Attorney
This one is a more a garden variety of proposed charter amendments, especially compared to the others discussed herein. It would change the reporting structure for the City Attorney. Under Austin’s Council-Manager form of government the City Attorney reports to the City Manager. Thus, the City Manager has hiring and firing authority over the City Attorney position. This amendment would switch that and the City Attorney would report to the Council, as does the City Manager, the City Clerk, the City Auditor and the Municipal Court Clerk. Council Member Vanessa Fuentes led the way in putting this one on the ballot.
The same idea has been brought forward before and been rejected by voters, including being narrowly rejected in November 2012 when voters approved the 10-1 District system. By the way Austin voters rejected single member districts six times before finally approving them in November 2012.
The reporting structure varies among cities with the Council-Manager form of government. The traditional view in Austin is that putting the City Attorney under the Council would make it easier for a Council majority to pressure the City Attorney into giving opinions that they, the Council majority, like. This view includes that the City Attorney reporting to the City Manager shelters (at least to some extent) the City Attorney’s opinions from being influenced by politics. The danger is that the City Manager will exert undue influence on the City Attorney in hopes of heading off Council policies that he or she does not like. This is the sort of thing that is always a danger in a democracy. The protection is that the Council has hiring and firing power over the City Manager.
The Austin Independent found no evidence that this proposed amendment has anything to do with the Council’s and City’s terrible won-loss record in courts; nor have we found any evidence that the Mayor and Council are taking any serious steps to avoid further court losses.
At the July 18 Council meeting, Fuentes displayed the level of deep background research she did before bringing her proposed City Charter change to the dais. Speaking of the 2012 vote on this proposal, she offered. “I mean we’re talking about a 51 to 49 percentage.” That was accurate. She then added, “I don’t know if that was a November election.” Immediately after saying she didn’t know in what month the 2012 election had been, she assumed that it was not held in November, arguing, “So this is an opportunity for us to have a more robust conversation with our community.”
The reference to a “more robust conversation” referred to more people voting in November elections because of presidential and top statewide elections being held in November. At the risk of being a stickler, I am going to point out that the only problem with Fuentes’ statement is that the last election on whether to have the City Attorney report to the Council was, as already noted above, held in November 2012. That’s something Fuentes could have found out by typing “City of Austin election history” into Google, and then clicking on the City Clerk’s webpage, which lists the date and results of City elections since 1840. Or, she could have sent the City Clerk a question. Or, she could have had an aide do the Google search. Instead Fuentes volunteered that she didn’t know if the last election on the topic was in November. She then argued for the Charter change she was proposing by assuming it was not a November election. (We’ll have further discussion on November elections in our next article in this series.)
Next: The rest of the power grabbing Charter amendments from Council, including the impact of only holding citizen initiative elections in November of even numbered years.
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