Loading...
11 Paris Home Rule Charter - Potential Amendments BOVEY, AKERS & BOJORQUEZ, LLP Attorneys at Law 12325 Hymeadow Drive, Suite 2-100 . Austin, Texas 78750 . Phone: (512) 250-0411 Fax: (512) 250-0749 Attorney-Client Privileged and Confidential Not for Public Release MEMORANDUM TO: Mayor, City Council Members, City Manager, City of Paris FROM: Monte Akers DATE: November 9, 2006 RE: Potential Amendments of the Paris Home Rule Charter Please accept this memo as the report requested at the meeting on October 30, 2006. Following is a list of potential amendments of the Paris Home Rule Charter based upon examination of the Charter by the City's staff and myself. Each issue is presented in the following format: a. Identification of Issue b. Brief explanation of Issue c. Suggested amendment d. Advantage of change, possible consequence of failure to change, or other relevant comment For the purposes of this report the issues are presented in the order in which they appear in the Charter. No attempt has been made to prioritize the importance of the issues at this time, and it will be obvious that some of the suggestions and comments are of very low priority (e.g. Comment 38), some may be unacceptable to the voters (e.g. Comment 9), while others are quite important. The list is rather long-41 suggested changes-but it is probable that other proposals and suggestions will be identified hereafter. At this point it is recommended that the Council identify issues that it has no interest in pursuing, so that the remaining issues may be prioritized. Those issues marked with an asterisk (*) were identified by City staff. 1. a. Section 3, entitled "Boundaries" does not contain boundary information. b. As the section states, this provision is obsolete because the boundaries have changed since the Charter was originally adopted. c. Delete Section 3 and re-number accordingly. 1 d. Clean up only. Cities are required by Sec. 41.001, Local Government Code, to prepare and maintain a map showing the boundaries of the City. 2. a. Section 6, entitled "Extension of city limits upon petition" is not consistent with state law regarding annexations by petition. b. The charter provision provides that owners of land adjoining Paris may petition to be annexed and that the council may do accomplish the annexation by ordinance not sooner than 20 days after the petition is presented. No provision is made for notice, hearing, or other actions that are required by state statute (Ch. 43, Local Government Code).. c. Re-draft the section to be consistent with state law. d. Failure to change the section will not prevent the City from complying with state law, but may create confusion among citizens or landowners who desire to petition for annexation.. 3. a. Section 7, entitled "Extension of city limits by the city council" is inconsistent with state law. b. The charter provision provides that the Council may annex adjacent territory, without consent of the landowners, by ordinance, after publishing notice and allowing opportunity for contest. However, it does not contain reference to requirements the legislature has imposed on Home Rule Cities in Chapter 43, Local Government Code, such as annexation plans, minimum width of annexations, maximum amount that may be annexed each year, a hearing in the area to be annexed in the event of protest, and other procedural and substantive actions. c. Re-draft the section to state that unilateral annexation shall be accomplished in the manner provided by state law. d. Failure to change the section may make it more difficult for the City to comply with both Charter requirements and Chapter 43 requirements, and may provide opponents to future unilateral annexations with additional legal arguments with which to challenge annexations in court. 4.* a. Sections 14 and 15, entitled "Hospital: Operation." And "Hospital: Finances." are no longer relevant. b. Making provision for a City hospital in the Charter is no longer necessary. c. Delete both sections. d. Deletion would clean up the Charter by eliminating irrelevant provisions. 5. * a. Section 16 provides that City elections will be held on the first Saturday in May of each year. b. State law requires that elections be held on uniform election dates, that in May being the second Saturday in May. c. Replace first Saturday in May with "the uniform election date established by law occurring in or about May of each year" or words to that effect. d. The change would make the charter consistent with state law. 6. * a. Section 16 states that council members shall be elected by majority vote (i.e. winner must receive more than 50%) 2 b. In fact, council members are elected by plurality vote (candidate receiving the highest number of votes is elected) which is explained in Section 97, although it is mistakenly misidentified as "majority" vote in that Section also. c. Change "majority" to "plurality." d. The change would correct a mistake and eliminate confusion. 7. * a. Section 16 provides that council members may not serve more than two terms in succession and may not succeed themselves for any additional successive term. b. This section is unclear about a member's ability to succeed himself or herself if he or she was appointed to fill an unexpired term. c. Amend the section to clarify that a member who is appointed to fill an unexpired term may succeed himself or herself for one or two additional term( s). d. The change would clarify the charter provision and should be fairer to a member who is appointed to complete a portion of a term. 8* a. Section 17 contains the qualifications to hold the office of council member, including a requirement to be 21 years of age, to have resided in the district for 12 months, and to not be in arrears in the payment of any taxes or other liability due to the city. b. State law (Sec. 141.001, Election Code) contains the general qualifications for holding office, which is a requirement to be 18 years of age and to have resided in the territory from which the office is elected for six months. There is no provision related to being in arrears in payment of taxes or other liabilities, and such provisions have been held to be invalid and unenforceable by federal courts. The courts' reasoning is that such provisions deny persons equal protection under the 14th Amendment. c. Amend the section to be consistent with state law; eliminating the requirement that there be no arrears in taxes or liabilities. d. The charter is currently more restrictive than state law, and may prevent well-qualified candidates from applying. More importantly, it contains a provision that is not constitutionally valid, meaning that if it is not amended and is, instead, enforced, a prospective candidate who is in arrears and who is denied the opportunity to run for office may successfully challenge that denial and recover damages. 9. a. Section 18 provides that members of the city council shall serve without payor compensation other than expenses. b. As the City grows and the time and effort required to exercise the office of council member increases, it may become difficult to attract well-qualified candidates if there is no possibility of compensation for their time and effort. c. Amend the section to allow the Council to set some level of compensation, provided that it does not take effect during the term of any council member in office at the time the compensation is adopted. d. Although potentially not a popular amendment with some voters, this change should provide greater incentive to run for office and devote the time necessary to govern the city. 10. a. Section 19 provides that the Mayor is the presiding officer and that the mayor pro tem serves in the mayor's absence or disability. No provision is made for selecting a presiding officer if both are absent or their offices are vacant. 3 b. The normal procedure in such a situation is to provide for the remaining members to select a presiding officer to serve until such time that the mayor or mayor pro tern returns or the office is filled. c. Amend this section to provide a mechanism for selecting a temporary presiding officer. d. This amendment is suggested for efficiency and cleanup purposes. 11. a. Section 23 prohibits council members from directing the city manager or a subordinate regarding the appointment or removal from office of any person, or to give direct orders to a subordinate, but does not provide a penalty or ramification for violating the prohibition. b. A mayor or council member may violate this prohibition without the council having a mechanism to punish or prevent the violation. c. Amend the section to provide a penalty, which could include removal from office after due process. d. It is not particularly uncommon for a council member to attempt to directly influence city officers and employees, and doing so may not only violate the charter but could subject the city to liability for harassment or wrongful constructive termination. The council should have clear authority to prevent or punish such behavior. 12. * a. Section 29 provides that all meetings shall be open to the public. b. State law, in the Open Meetings Act, has established a detailed and complex set of regulations governing the types of deliberations that must be open to the public, and the few (eight) circumstances when a closed session may be held. If Section 29 prevents the council from holding any closed sessions, the governance and financial security of the City is put at risk, particularly with regard to purchases of real estate, receiving advice of legal counsel, frank discussion of city officers and employees, and pursuit of economic development opportunities. c. Amend this section to provide that all meetings shall be governed by the Open Meetings Act. d. This amendment will bring Paris into step with other cities in the state and should eliminate situations in which confidential city business and information is unnecessarily disclosed to the City's opponents, competitors, and critics, to the detriment of the citizens of Paris. 13. a. Section 33 provides that a city ordinance need not be read more than once or considered at more than one session in order to be effective, except as provided in Article XI ofthe Charter. b. Article XI (specifically Section 121) deals with franchises and requires three readings of franchise ordinances. c. In this section, delete the reference to Article XI if the suggested change to Section 121 discussed in Comment 36 below, (i.e. deletion of the requirement for multiple reading of franchise ordinances) is adopted. d. Changes in the law regarding franchises have essentially eliminated the reasons for extended consideration of the granting of franchises, making this requirement unnecessarily time-consuming for both the city and the affected utility. 4 14. a. Article V (The Budget), and particularly Section 54, contains a deadline (adoption of the budget not later than the 27th day oflast month of the fiscal year) that may be inconsistent with current Truth in Taxation deadlines. b. Truth in Taxation provisions required by state law impose certain deadlines, including a final deadline for adoption of an ad valorem tax rate (which must be preceded by adoption of the budget) that may conflict with, or make cumbersome, the meeting of deadlines in the Charter. c. Amend Article V to provide that in the event that deadlines for adoption of the budget or tax rate in the Charter are inconsistent with deadlines imposed by state law, that state law shall be followed. d. This amendment should be considered seriously only if City staff has encountered the type of scheduling and deadline problems described. 15. a. Section 58 provides for a "contingent appropriation" of not more than three percent of the total general fund expenditure, to be expended only in the case of established emergencIes. b. If the contingent appropriation is currently a useful budgeting tool, the three percent cap may be unnecessarily restrictive; if it is not a useful tool, the section is superfluous. c. Modify the language of Section 58 to make the contingent appropriation a meaningful budgeting tool if it is not one already. d. This amendment should be considered seriously only if the Councilor City staff have determined that the contingent appropriation provision is no longer meaningful. 16. a. Section 60 provides that the city budget may be amended only in cases of grave public necessity "the actual fact of which shall have been certified in writing by not less than one hundred (100) resident qualified voters owning real property within the corporate limits. . . ." b. This requirement makes emergency amendment difficult and time-consuming, which is inconsistent with a need for prompt response to a grave public necessity. c. Amend this section to require that budget amendments be accomplished in the manner provided by state law, which still requires a grave public necessity, but allows the city council to make that determination, and allows non-emergency, simple amendments if they do not increase the amount of funds to be expended. d. This amendment will give the city council greater ability to respond to true emergency (e.g. homeland security) issues. 17. a. Section 63 provides that municipal bonds shall never draw interest in excess of six per cent per annum. b. While not necessarily a problem in the current market, this provision could be significantly restrictive under other economic circumstances. c. Delete the six percent cap interest cap. d. Input from City staff and bond counsel is recommended in analyzing the importance of this suggested amendment. 18. * a. Section 74 requires that the sale of any land or other properties valued at more than $1000.00 shall be advertised for bids in the local newspaper and shall be awarded to the highest bidder. 5 b. State law (Ch. 272, Local Government Code) provides specific regulations for the sale of real property by cities, which is generally sold through competitive bids, but which may be sold for its fair market value on the basis of an appraisal if it is real estate of a certain nature (e.g. narrow strips, land conveyed to a governmental entity with power of eminent domain). There are also specific provisions for conveyance of land to abutting property owners. Personal property (e.g. equipment) may be sold under state law in any manner that would be legal for an individual to sell such property. c. Amend Section 74 to provide that city property shall be sold in the manner provided by state law. d. The $1000.00 provision is unnecessarily restrictive and expensive (i.e. cost of publication) whereas state law currently ensures that cities will sell property in a fair, responsible manner. 19. a. Section 75 requires council approval for all expenditures by the director of finance exceeding $1000.00. b. This restriction may be unnecessarily restrictive on the ability of the financial director and city manager to perform their jobs, may delay important purchases, and may create multiple agenda items for council meetings. c. Increase the amount or provide that the council shall set a limit on the amount by ordinance. d. The $1000.00 is much lower than that utilized in many other cities the size of Paris (that do not have such a provision in their charter), and failure to amend will continue an inefficient process. 20.* a. Section 75 requires that the City go out for competitive bids for all contracts in excess of$IOOO.OO and requires that all bids be awarded to the lowest and best bid. b. State law provides that expenditures in excess of $25,000.00 must be competitively bid and provides for certain types of exemptions, as well as certain circumstances where best value bids may be awarded, and circumstances where purchasing may be accomplished through cooperative purchasing, requests for proposals, and other methods designed to provide maximum value to Texas cities. c. Amend this section to make it consistent with state law. d. Although state law also provides (in Sec. 252. 002) that if purchasing mechanisms in a home rule charter conflicts with state law, the city council may elect to have Chapter 252 supercede the charter, the provisions in the Paris Charter are still unnecessarily restrictive and not in the best interest of the City. 21.* a. Section 76 provides that any city improvement costing more than $1000.00 shall be executed by contract and shall be awarded to the lowest responsible bidder after public notice and competition. b. The same reasoning discussed in 19 above applies to this section. c. Amend this section to make it consistent with state law. d. See 19 above. 22. a. Section 77 provides that all checks, vouchers, and warrants shall be signed by the director of finance or his deputy and countersigned by the city manager. 6 b. The Director of Finance, City Manager, and/or City Council should be able to designate other authorized signatories for maximum efficiency of financial operations. c. Amend the section to allow other check signers to be designated. d. A similar proposal was not approved in the 1996 Charter amendment election. It should be considered seriously now only if City staff so recommends. 23. a. Section 80 specifies that negotiable instruments shall be designated "for the year 19 ." b. "19 " is out of date. c. Change "19_" to "20_." d. Cleanup only. 24. a. Sections 86 through 89 contain details for the makeup and duties of the Board of Equalization. b. Are all of these provisions still relevant? c. Consider changes or deletions to eliminate any conflicting or useless requirements. d. Primarily cleanup, assuming City staff has experienced difficulties or redundancies with these sections. 25. a. Section 93 provides that the municipal election shall be the first Saturday in May. b.-d. See comment 5 above. 26. a. Section 95 provides that candidates for council shall file an application at least 45 days prior to the election. b. State law (Sec. 143.007, Election Code) provides that candidates for city office must file not later than 5 p.m. on the 620d day before election (with certain exceptions). c. Amend the section to be consistent with state law. d. The 45 day deadline in the Charter could cause candidates to miss the actual, state- imposed deadline for filing. 27. * a. Section 97 states that election of council members is by majority vote, but then describes election by plurality. b-d. See Comment 6 above. 28. a. Section 99 provides that the canvassing of elections shall occur not earlier than two days or later than six days after an election. b. State law (Sec. 67.003, Election Code) provides that the canvas shall occur not earlier than the 8th or later than the 11 th day after the election. c. Amend the section to be consistent with state law. d. Cleanup and avoidance of confusion. 29. * a. Section 107 provides that an election on initiative or referendum shall be held not less than 30 or more than 60 days after the Council votes. b. State law provides for elections on uniform dates in May and November. c. Amend the section to provide for election on a uniform election date. 7 d. While an argument may be made that this charter provision allows an alternative date to a uniform date, it is more consistent, as well as less expensive, to hold such elections on uniform dates. 30. a. Section 111 states that any member of the city council may be removed by recall, and Section 112 requires that an affidavit for a petition for recall must state the grounds for removal, but the Charter does not specify what serves as grounds for removal. b. By not specifying the grounds for which a council member may be recalled, the door is open to groups of citizens to initiate recall elections for any conceivable reason, no reason, or an improper reason, at great expense and turmoil for the City. State law specifies the grounds for which a member of general law city council member may be removed (which is by a process other than recall). c. Amend the section to spell out the grounds for removal, such as misconduct, malfeasance, etc., and define the meaning of each. d. Some cities have been crippled or serious distracted from the business of governing by repeated petitions for recall that are, in fact, based only on dissatisfaction rather than a valid reason for removal from office. Paris council members deserve at least the same protections that general law council members enjoy with regard to grounds for removal from office. 31. a. Section 112 provides that an affidavit for a petition for recall must state a ground for removal from office, but no provision is made for verification that the ground is sufficient. b. Without a mechanism for the council, city manager, city secretary, city attorney, or disinterested third party to examine and determine that an alleged ground for removal from office is, if true, sufficient for removal, an applicant may falsely accuse a council member of any type of crime or misconduct and force an election. c. Amend the section to provide for verification of stated grounds for removal by a qualified person or persons. d. This amendment should help prevent unfounded and expensive recall elections. 32. * a. Section 113 provides for the contents of a recall petition, but does not specify that those signing it must reside in the district of the council member subject to recall. b. In single member districts, council members should be subject to recall only by the voters who elected him or her to office. c. Amend the section to provide that the petition shall be signed by residents of the council member's district. d. Failure to make this amendment may subject a council member to recall based on signatures of persons who are not in his or her district. 33*. a. Section 114 provides for a recall election not less than 30 nor more than sixty days after a recall petition is presented. b.---d. See Comment 28 above. 34. a. Sections 119 through 130 contain detailed requirements for the issuance, contents, terms, condition, limitations, and applicability of franchises. b. Changes in the law have made some of these provisions obsolete, while new arguments advanced by utility companies have created opportunities to amend the Charter in 8 a manner that gives a city added protection. For example current debates about when a utility must pay the cost of relocating its lines when a city project requires that it do so could be resolved, in the City's favor, by amending the charter to specify when the utility must pay. c. If the Council is interested in exploring changes to these sections, I will provide more detailed suggestions. d. These suggested amendments may be technical and difficult for voters to understand, which may cause the Council to determine that these types of amendments are not worth pursumg. 35. a. Section 120 provides that no exclusive franchise or privilege shall be granted. b. Exclusive franchises are prohibited by state law for certain types of utilities or services. However, cities are authorized under Texas law to enter into exclusive agreements with solid waste providers whereby the provider pays compensation to the city in return for having the exclusive right to serve residents and businesses in the city. Technically a solid waste agreement is not a franchise (which is a grant to use public property for a private or commercial purpose) and is, instead, a contract. Nevertheless, solid waste agreements are often called franchises, and there are even statutory provisions that refer to them as franchises. c. Amend Section 120 to specify that for purposes of this section an agreement for the provision of solid waste services in the City of Paris is not considered to be a franchise. d. Should the City desire to grant an exclusive right to a solid waste provider, as allowed by state law, one or more other providers may challenge the City's doing so, arguing that such agreements are franchises and that the current charter provision prohibits the exclusive agreement. No such case has yet been reported, but is very likely to arise in a city that has a charter provision similar to Section 121. 36. a. As discussed in Comment 13 above, three readings of an ordinance to adopt a franchise is required in Section 121. b. In earlier years, the granting of a franchise was a matter considered to require particular scrutiny from the public, whereas changes in the law in the last decade have caused franchising to become more uniform or, in some cases, to be totally replaced by uniform state procedures. The three reading requirement may now be unnecessarily cumbersome. c. Eliminate the three reading requirement. d. This change is suggested for efficiency and cleanup purposes. 37. a. Section 121 provides that a franchise may not take effect for sixty days after its adoption. b. This built-in delay probably no longer serves purpose. It was included to allow citizens the opportunity to petition for an election on a franchise, which rarely occurs. c. Delete the 60 day delay provision; consider deleting the provision for election by petition. d. This change is suggested primarily for cleanup and modernization purpose. 38. a. Section 131 is entitled "Publicity of records." 9 b. Properly this section should be entitled "Public Nature of Records" or simply "Public Records." "Publicity" is usually considered to mean "newsworthiness" or a similar concept. c. Change the title to replace the inappropriate word. d. Cleanup only. 38. a. Section 132 prohibits a council member, officer, or employee of the City from having a financial interest, direct or indirect, by reason of ownership of stock in excess of I % of the total stock of a corporation that contracts with the city, or to have an interest in the sale of land or materials, or to have other direct or indirect financial interest. Violation subjects the officer or employee to forfeiture of office or position and renders a contract voidable. b. State law, through Chapters 171 and 176 of the Local Government Code as well as penal provisions punishing abuse of office, address the type of conflict of interest envisioned by this charter provision, and will punish violators, but will not cause a city contract to fail or a person to forfeit office. c. Amend this section to be governed by state law. d. This charter provision is more restrictive than state law and may cause the City to lose qualified officer holders, officers, or employees, or may cause an important contract to fai1. 39. * a. Section 135, entitled "Persons indebted to the city shall not hold office or employment" provides that a person who is in arrears in taxes or other liabilities due the city, even though qualified otherwise, may not hold office or be employed by the City. Also see Comment 8 above. b. As discussed under Comment 8 above, this provision is not enforceable. c. Delete this section or amend it in a manner that will not subject the City to any potential liability. d. See Comment 8. A similar charter provision was held to be invalid in Gonzales v. City of Sinton, 319 F. Supp. 189 (S.D. Tex. 1970). 40. a. Section 136, entitled "Oath of Office," contains a lengthy oath of office which is different than that required by state law. b. The oath of office is different than that which officers who are qualified to administer the oath are accustomed to giving. c. Amend the section to require the same oath of office required by state law. d. Other than avoiding the necessity of having the Charter oath when new officers are sworn in, there is no significant incentive for pursuing this amendment. 41. a. Section 149, entitled "Amending the Charter" contains requirements, such as the mailing of a copy of all proposed amendments to each qualified voter in the City, that are expensive and cumbersome. b. Amendment of the Charter under this section is more complicated and expensive than state law requires. c. Revise the amendment process to be consistent with state law or to at least omit the mailing requirement. d. This amendment is suggested is for efficiency and cost-saving purposes. 10