City Attorney on Charter Change

This past Monday night, our almost never present city attorney was present and gave a rundown on the effect of the charter change for direct election of the mayor. His comments can be found at https://www.cor.net/modules/showdocument.aspx?documentid=5696.

In his presentation he made clear that all of the "confusion" wasn't to be worried about. Contrary to the claims of the Richardson Coalition and that rumor-monger site that is called rumorcheck.org were just a lot of hot air. No surprise about that!

Here a text version of his PowerPoint presentation:

Charter Amendments

Peter G. Smith

Nichols, Jackson, Dillard, Hager & Smith

 

 

OVERVIEW

·         City Council and City Manager requested a report regarding the amendments to the Charter.

·         A report is timely now that City Council has adopted the amendments to the Charter.

·         This is a general discussion. A written report with more detail is available for the public tonight.

Background

·         Special election was called by the City Council as the result of a petition submitted and signed by the required number of registered voters requesting proposed amendments to the Charter.

·         State law authorizes the registered voters of the City to submit a petition to require an election on proposed amendments to the Charter.

·         City Council had no discretion and was required to call a special election if the petition was signed by the requisite number of registered voters.

·         City Council could not modify the amendments submitted by the petitioners – good, bad or conflicting.

·         City Council and staff refrained from comment regarding the effect of the amendments prior to the election to avoid such comments being construed as: (i) an official interpretation, which would have been premature; or (ii) advocating the defeat or passage of the proposed amendments.

·          In determining the effect, the City should consider the literal language of the Charter, as amended; the context of the language; and the Charter as a whole.

·         Although, the intent of the petitioners is unknown, a reading of the petition indicates that the amendments were only intended to change the manner of election of the Mayor.

·          Thus, it can be reasonably concluded that the amendments were intended to only change the manner of how the Mayor is elected and that no other substantive changes were intended.

·          That is why one proposition was submitted to the voters at the special election.

Challenges

·         Legal challenge to the amendments (other than an election contest under the Election Code) will require an actual controversy.

·         Generally, state law requires a controversy to be ripe for adjudication.

·         Courts will refrain from providing an advisory opinion in the absence of an actual controversy.

Summary of Changes

·         Amendments effective now.

·         Mayor is elected directly by the voters beginning with the May 2013 election.

·         Composition of the City Council has changed from (7) council members to six (6) members and a mayor.

Council Composition

·         Section 3.01 was amended to state “all powers conferred on the City shall be exercised by a City Council to be composed of seven (7) members six members and a Mayor….”

·         As a result:

Confusing terms and phrases

·         “members of the City Council” means the Mayor and the six members, unless the context means otherwise.

·         “council member” or “council members” means the six member(s) of the City Council, excluding the Mayor, unless the context means otherwise.

·         “member” or “members” means member(s) of the City Council excluding the Mayor, unless the text means otherwise.

·         “city council” or “council” means and includes the Mayor and six members, unless the context means otherwise.

Place Assignments

·         Beginning with May 2013 election, the Mayor is assigned place 7.

·         Six members of the city council are assigned places 1-6.

·         Person elected to place 7 in the May 2013 election will be the Mayor.

·         Persons elected to places 1-6 in the May 2013 election will be the six members.

District Residency Unchanged

·         Persons elected to places 1- 4 must reside in the corresponding numbered districts.

·         Persons elected to places 5 and 6 may reside in any district.

·         Person elected to place 7, the Mayor position, may reside in any district.

Mayor

·         Mayor is entitled to vote on all matters before the City Council including the budget.

·         Mayor is required to vote on matters coming before the City Council except on matters involving the Mayor’s own misconduct, when there is a financial interest, or when disqualified by law.

·         Mayor may vote to fill a vacancy on the City Council.

·         Mayor may still be removed from office for misconduct by 2/3 vote of entire City Council.

·         Since Mayor no longer appointed by the City Council, the amendment to Section 3.02 to delete “subject to removal as mayor at anytime by a vote of two-thirds of the total membership of the council” was appropriate.

·         Mayor (along with the six members) is still prohibited from being appointed as the city manager.

·         Mayor (like the six members) may still be compelled to attend meetings.

Vacancy in office of Mayor

·         Vacancy in the office of Mayor now filled by the Mayor Pro Tem.

·         Office of Mayor Pro Tem, and the council seat/place held by the person who was Mayor Pro Tem, then becomes vacant.

·         Vacancy in the office of Mayor Pro Tem is and the council seat/place filled by appointment by majority vote of remaining members and Mayor.

Qualifications to hold Office

·         Qualifications to hold office of Mayor or to hold office as one of the six members have not changed.

Quorum

·         Quorum has not changed.

·         Quorum is the minimum number of members of the City Council that must be present to conduct a meeting and take action. (“5 members” under Charter).

·         Normally quorum is majority of the City Council unless Charter provides otherwise.

·         As result of amendments to Section 3.01 making a distinction between the Mayor and six members, it can be argued that the Mayor is not counted toward a quorum.

·         If that interpretation is correct - at least 5 of the 6 members, excluding the Mayor, must be present to conduct a meeting and transact business.

·         That interpretation is faulty given that the amendments were only intended to change the manner of election of the Mayor...

·         Quorum should be considered 5 of any of the Mayor and the six members, until a court or other competent authority determines otherwise.

Vote Required for Passage

·         Vote required for passage of a resolution or ordinance has not changed.

·         Section 3.12 provides … every ordinance or resolution shall require for passage the affirmative vote of a majority of the members present.

·         Since a quorum under Section 3.11 is 5 members the affirmative vote of at least 3 members present is required for passage of an ordinance or resolution when only a bare quorum is present.

·         It may be argued, as result of the amendments, that the phrase “members present” means the six members excluding the Mayor and that the vote of the Mayor may not be included in the minimum number of votes required for passage of an ordinance or resolution.

·         However, since Section 3.02 provides that the Mayor “shall vote on all matters coming before the council”, reading Section 3.12 to exclude the vote of the Mayor in the determining the minimum number of votes required for passage of an ordinance or resolution would be inconsistent with or contrary to Section 3.02.

·         Since the Charter, as amended, should be construed to be internally consistent whenever possible and give meaning and effect to all provisions of the Charter, Section 3.12 must be read to mean that the vote of the Mayor may be counted in the required number of votes required for passage of an ordinance or resolution.

·         If it were otherwise, Section 3.12, which was not amended, would contradict Section 3.02.

 

Here is a pdf with some additional comments from the City Attorney's presentation:

http://graphics.dc-tm.com/CityAttorney-DirectElection.pdf