Charter Change Checklist

A survey of a large sample of Richardson residents shows deep and widespread concern for the process and revisions being hand crafted by the attorney city officials have relied upon the past several decades.  Recognized for tenacious defence of questionable actions by public servants and mangled, wildly plausible interpretations and applications of statutes, this defender of the public trust has been tapped to ramrod the language for the upcoming charter change election.  True to form, the process underway all but blocks any substantive public involvement, relying on long-known cohorts and cronies to play the role of representative for Richardson citizens.  Meanwhile, the bully tactics and practice of public humiliation cowers and intimidates otherwise concerned citizens from challenging the people who pledged their loyalty in exchange for a position of authority.

The unofficial survey asked Richardson citizens what modifications to the Richardson City Charter would best serve the public.  Here's the outcome:

  1. Single member district election of Council members.  Bring Richardson up to date with the rest of Texas.  Each district will elect its own representative rather than continue the practice of allowing the power brokers and their cronies to designate a loyalist for each seat on the City Council.
  2. All contracts with government entities must include a certificate of interested parties listing everyone with a financial interest regarding the contract and/or business familial relationship with any public official or employee.
  3. Personal financial statements of public officials updated quarterly and posted on the Richardson city web site.
  4. Four year period of prohibition from lobbying after public officials and employees leave office.
  5. Prohibition of insider trading based on information obtained through public service.
  6. Public disclosure of agenda and minutes of all meetings held closed to the public upon any action or inaction executed relative to items deliberated.
  7. Public election of the Municipal Judge.  The position of Municipal Judge should be elected by the people, therefore not being beholden to the City Council and its public servants along with others entrenched in city affairs.
  8. Prohibition of certificates of obligation to be "refunded" using appropriations that have yet to be authorized by public election.  Appropriating funds yet to be approved by voters is gambling.  The current prohibition on refinancing debt should be extended to include "refunding" debt, i.e. paying off a certificate of obligation with funds from the sale of bonds presumed to be authorized in a future election.  Appropriations to finance certificates of obligation must be from current assets that have been authorized by the voters.
  9. Full disclosure of current debt, cost of debt on new bonds, specific projects to be funded, who is paid and the amounts of any management fees, and use of any surplus funds after projects have been completed.  See Your Money and Local Debt, a report by the Texas Comptroller for details.
  10. Annaul reporting of any payments received by public employees, or public officials paid through public contracts or sources.
  11. Annual reporting of individuals compensated through retirement contributions, total retirement compensation and details of the status and health of the employee retirement system.
  12. Prohibit real estate transactions involving public land for the benefit of private enterprise.  Stop the practice of using public funds and code compliance prosecutions to acquire land and property for the purpose of city building initiatives instigated through use of secret meetings and negotiations.  Block the practice of secret agreements and decisions on use of real estate.  Release any an all records relating to past deals and transactions.
  13. Public elections for disposition and use of any and all public land.  Citizens of Richardson should not be excluded from the decision process or prevented from providing public input on matters involving the sale and use of land held in the public trust.  No second party entity, such as the Richardson Improvement Corporation should be enabled to engage in secret deals or sheltering real estate transactions involving public property.  Any property transaction funded or facilitated using public resources, including any time or talent of any public servant of the City should be first disclosed to the public and then decided through a public election process.
  14. Manditory public auction of any parcel of public land.  Richardson city officials avoid the statutes that mandate public auction for disposal of public land by facilitating and funding purchases and sales through the Richardson Improvement Corporation (RIC).  The RIC and its board of top level Richardson public officials shall not be enabled to use public funding to execute arms-length transactions to avoid the public auction statute.
  15. Prohibit overcharging for public utilities and services and the subsequent transfer or "sweeping" of surplus revenues into the General Fund.  Any surplus funds from utility and service revenues should be applied to the maintenance, repair or improvement of that specific utility or service, or be refunded to those who were overcharged.  Rate adjustments should reflect the financial requirements for the service.
  16. Sunset all initiatives.  Periodic review of the viability and value of every program, project, or initiative to which any public resource is applied.
  17. Disclosure of anciliary payments from any aspect of public business to anyone on the public payrol.  Show management fees taken from bond money, project management fees paid to, and other like payments to public employees over and above the compensation paid for their official position.
  18. Prohibit the sell back of sick days or vacation time by public employees.

Did your suggestion not appear on the list?  Send it to the This email address is being protected from spambots. You need JavaScript enabled to view it..

When the Commission is Not

Recently the City Council decided it was time to tackle the challenge of changing the City Charther to enable questionable activity that has quietly gone on for years.  Out of shear need to act or face another embarassing court challenge, the Council and Management, lead by the city's contracted law firm lawyer, Peter (Pete) G. Smith, set about hood-winking the citizens with another example of underhanded, secretive executive actions.  Using the well-exercised inpenetrable cloak of secrecy and routine agreements made in closed meetings, an Orinance was crafted, membership was solicited and selected, and a slam-dunk public agenda was crafted that only a Pete Rose fan could truly appreciate. 

The citizens of Richardson now have a group of political insiders who have been ordained to secretly colaborate with public servants to decide what provisions in the peoples' contract with its government will be modified.  With full involvement of those engaged in questionable public actions and virtually no public input, the group has assumed the title of "Charter Commission" and are currently mulling over memos and messages secretly being communicated by members of City staff for consideration.

It wasn't long before city hall watchers were crying foul.  State Law prescribes that a proper Commission is a deliberate choice of the voting public, followed by a public election of its membership.  What the City of Richardson formed was a committee having members appointed by the governing body.  Below is how the contracted city attorney redefines the word "Commission" in an attempt to avoid the unpleasant truth of what the Texas State Law prescribes, specifically regarding Charter change initiatives.  To hear this story, it would appear the definition of the word "fact" also has uncertain meaning.

--------------------------------------------------
10/23/2014
To Dan Johnson, Richardson City Manager
RE: Ordinance 4075, Charter Commission

Dan,

I am pleased to see that charter review is under consideration. There has been need for this for quite some time. My concern is that the process by which the Charter Commission was created violates Local Government Code, Title 2, Subtitle A. Chapter 9.
In the city charter, section 22.03, states the city charter may be amended in one of three ways:
(a) By action of the city council submitting a proposed amendment to the voters for approval; or
(b) By report of a Charter Commission created by ordinance; or
(c) By the voters, consistent with state law. Proposal of an amendment by the voters of the city shall be by petition containing the full text of the proposed amendment and shall be governed by state law. There shall be no limitation as to the subject matter.
The City Charter is consistent with Local Government code mentioned above, but has additional requirements.
If the governing body chooses option (b) in Section 22.03, a Charter Commission, then it must adhere to the guidance further specified in Sec. 9.002.
Sec. 9.002 (a) states “The governing body of the municipality may, by an ordinance adopted by at least a two-thirds vote of its membership, order an election by the voters of the municipality on the question:  "Shall a commission be chosen to frame a new charter?..."  
A governing body must order an election to create a Charter Commission. The governing body cannot, on its own, and without voter approval, create a Charter Commission.
The second matter of concern is how members are chosen for a Charter Commission. Section 9.002 (c) describes how the members of the Charter Commission are to be chosen, only by an election of qualified voters.
Sec. 9.002 (c) “The ballot at the election on the question prescribed by Subsection (a) shall also provide for the election from the municipality at large of a charter commission to draft a charter if a majority of the qualified voters voting on the question of choosing a charter commission approve the question. ..” Rather than following proper requirement for the public election of members of the Charter Commission, it appears the membership of the present Charter Commission was chosen by the city council members.
The third concern is if a governing body chooses to use a Charter Commission, then it must have at least 15 members, not just 11 members as this city council has done.
Sec. 9.002 (c) “…  The commission must consist of at least 15 members, but if it has more than 15 members it may not have more than one member for each 3,000 inhabitants of the municipality.  The ballot may not contain any party designation.”
You can probably see why I have concerns that proper law is not being followed concerning the formation of the Charter Commission by Ordinance 4075.
Texas Attorney General opinion JC-0187 ( https://www.texasattorneygeneral.gov/opinions/opinions/49cornyn/op/2000/htm/jc0187.htm ) seems to reinforce my opinion that the city council’s actions are improper in this matter.
Excerpt of JC-0187: “…The latter constitutional provisions provide that the adoption or amendment of charters is subject to such limitations as may be prescribed by the legislature. . . . We conclude from this that the legislative intendment is that Chapter 9 is to apply to every situation in which a city desires to become a home-rule city as well as to home-rule cities that wish to amend their charters…”
The city charter does give the governing body the choice of how to amend its charter. If a governing body makes the choice to use a Charter Commission, that Charter Commission must be approved by the voters. The governing body does not appear to  have the authority to create and populate the Charter Commission on its own, without a public vote, as was done on October 6, 2014.
It is my hope you can clear up this apparent misunderstanding. I look forward to your answer and explanation.

The Reply:

danjohnsonsmI will have the City Attorney assess your comments and we'll then respond.

___________
Dan Johnson
City Manager
City of Richardson, Tx
972-744-4201 w
This email address is being protected from spambots. You need JavaScript enabled to view it.

 

N I C H O L S , J A C K S O N , D I L L A R D , H A G E R & S M I T H , L . L . P

Peter G. Smith, Partner
(214) 665-3365
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
Attorneys & Counselors at Law
1800 Ross Tower
500 North Akard Street
Dallas, Texas 75201
(214) 965-9900
Fax (214) 965-0010
E-mail This email address is being protected from spambots. You need JavaScript enabled to view it.
ROBERT L. DILLARD, JR. (1913-2000 )
H. LOUIS NICHOLS (1916-2010)
ROBERT L. DILLARD, III
OF COUNSEL
LAWRENCE W. JACKSON
OF COUNSEL

October 28, 2014

Mayor Laura Maczka
Mayor Pro Tem Bob Townsend
Council Member Mark Solomon
Council Member Scott Dunn
Council Member Kendal Hartley
Council Member Paul Voelker
Council Member Steve Mitchell

Re:  Charter Commission

Dear Mayor, Mayor Pro Tem, and City Council:

Pursuant to the request of the City Manager, we provide the following opinion relating to
whether the Richardson City Council was required to submit to the electorate the option of
whether or not to appoint a charter commission for the purpose of making recommendations on
amendments to the existing City of Richardson Home Rule Charter. This letter is intended to
address the concerns expressed in the email from David Chenoweth dated October 23, 2014.


For the reasons set forth herein, we conclude the City Council was not required to order
an election to create the Charter Commission. The City Council may on its own initiate and,
without voter approval, create a Charter Commission for the purpose of recommending possible
amendments to the City Charter for City Council consideration as part of the process for
determining whether to call an election to consider amendments to the existing City Charter.


The City Council may at any time appoint a charter commission, or other board or
committee, for the purpose of making recommendations to the City Council on possible
amendments to the existing City Charter without having to conduct an election for the creation of
the charter commission. The fact that the body appointed by the City Council to review the City
Charter and prepare a report of recommended amendments is called a “Charter Commission”
does not, by itself, require the election process in Texas Local Government Code Section 9.02(a)
be followed. Amending the existing City Charter does not require an election by the voters to
determine whether a charter commission should be created for the purpose of recommending
amendments to the City Council. The citizen has relied on the process required for the adoption
of a new charter and not for amendments to an existing city charter.


The citizen’s argument is focused on the fact that the City Council chose to call the board
or group to review the existing City Charter a “Charter Commission” as provided in Richardson
City Charter Section 22.03 (b), and ignores the plain meaning of the City Charter, Texas Local
TM 68867October 28, 2014
Page 2
_______________
Government Code § 9.004, as well as the charge of the Charter Commission in Ordinance No.
4075. City Charter § 22.03 provides three different methods by which an amendment to the City
Charter may be proposed, one of which is “by report of a Charter Commission created by
ordinance”. See Charter Section 22.03(b). Texas Local Government Code § 9.002(a), on the
other hand, provides that the creation of a Charter Commission must be by election called by the
City Council following adoption of an ordinance approved by 2/3 of the entire membership of
the council. The ballot proposition for such election must read “Shall a commission be chose to
frame a new charter?” See Texas Local Government Code § 9.002(a). The statutory wording of
the required proposition language makes it clear that the process in Texas Local Government
Code § 9.002 (a) applies only to adoption of a new charter. There is nothing in Texas Local
Government Code § 9.002 or elsewhere that requires an election of a Charter Commission for the
purpose of making recommendations to the City Council for possible amendments to an existing
city charter.


The citizen’s misunderstanding appears to be based on the fact that the body selected by
the City Council for the purpose of making recommendations to the City Council is called a
“Charter Commission” per the City Charter. However, such body is only charged with
recommending amendments to the City Charter and not development of a new City Charter. If
the City Council had desired to have an election that ultimately could result in adoption of a
completely new city charter (which it could do), then the procedures set forth in Texas Local
Government Code §§ 9.002 and 9.003 relating to the election authorizing selection of a charter
commission to develop a new city charter and the subsequent election to adopt that new charter
would be required.


In the present instance, the City Council did not intend to call an election to adopt a new
city charter. The charge to the Charter Commission in Ordinance No. 4075 was limited to the
consideration of amendments necessary to the make the City Charter better conform to state and
federal law where conflict or inconsistencies exist, or to clarify and condense City Charter
sections to improve the application of the City Charter. Since only amendments to the existing
City Charter are to be proposed, the procedures set forth in City Charter Section 22.03 and as set
forth in the Ordinance No. 4075, which are consistent with the procedures in Texas Local
Government Code § 9.04, may be followed. The fact that the body appointed by the City
Council to review the City Charter and prepare a report is called a “Charter Commission” does
not, by itself, require the process in Texas Local Government Code § 9.02(a) be followed.


The citizen raising this issue cites language from Tex. Atty. Gen. Op. JC-0187 in an
attempt to support his argument that an election was required prior to appointment of the Charter
Commission. Tex. Atty. Gen. Op. JC-0187 is factually and/or legally inapplicable. That opinion
related to a Special Law city which was trying to back door itself into becoming a home rule city
by the adoption of a single amendment to its Special Law charter under Texas Local Government
Code Section 9.004. Though the opinion makes a global statement that the adoption and
amendment of a city charter must follow all of the procedures for adopting a new or amending an
existing charter (which we do not dispute), the opinion does not discuss the fact that the process
for adopting a new home rule charter and amendment of an existing home rule charter are
different. The holding in Tex. Atty. Gen. Op. JC-0187 basically states that the Special Law city
at issue, which was merely trying to amend its Special Law charter using Texas Local
TM 68867October 28, 2014
Page 3
_______________
Government Code Chapter 9 procedures and then pronounce itself a home rule city, was instead
required to obtain authorization by election to create a charter commission and have the citizens
of the city adopt an entirely new home rule charter under Texas Local Government Code
Sections 9.002 and 9.003, respectively, before it could become a home rule city. The opinion
does not discuss the process which home rule cities must follow to adopt amendments to existing
charters.


In summary, the City Council was not required to order an election to create the Charter
Commission. The City Council may on its own initiate and, without voter approval, create a
Charter Commission for the purpose of recommending possible amendments to the City Charter
for City Council consideration in determining whether to call an election to consider
amendments to the existing City Charter. Since the Richardson City Council is only seeking to
amend the existing home rule charter and not adopt a new city charter, it was not necessary to
submit to the electorate a proposition relating to the creation of a charter commission appointed
by the City Council under Texas Local Government Code Section 9.002(a). Such a requirement
only would apply if the City Council were seeking to adopt an entirely new city charter to be
submitted to the voters.


Thank you for your attention. If you have any questions please do not hesitate to contact
me.

Very truly yours,

NICHOLS, JACKSON, DILLARD,
HAGER & SMITH, L.L.P.
By:

petesmithsignature
Peter G. Smith
PGS:tlo
cc:
Dan Johnson
Aimee Nemer
Shanna Sims-Bradish
Kevin B. Laughlin.

 

The History & Danger of Administrative Law

Hillsdale College, founded in 1844, publishes Imprimis, with over 2,800,000 monthly readers. Philip Hamberger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.

The September 2014 edition of Imprimis, eititled "The History & Danger of Administrative Law" is adapted from a speech delivered on May 6, 2014 at Hillsdale College's Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as a part of the AWC Family Foundation Lecture Series.

The article describes how, over the course of social evolution, public servants came to acquire the means necessary to impose their will on free societies and what the people did to return order, liberty and freedom to the citizenry. The City of Richardson leadership appears to have evolved into exhibiting the conflicted disposition that follows historical accounts that resulted in abusive conditions.