Monday, April 8, 2013

Who Killed D.E.? A Richardson Whodunnit

One question is guaranteed to come up at every Richardson mayoral debate. It's worded something like this: Who killed direct election of the mayor? OK, maybe not as dramatic as that. Maybe more like this: Did you support direct election of the mayor?

Amir Omar makes his answer the centerpiece of his campaign. He says not only did he support direct election of the mayor, but he took a principled stand in favor of it despite being warned that he would have difficulty winning re-election if he did so. Further, he accuses Laura Maczka of "leading the charge" against putting the matter before the voters in a charter amendment election.

Maczka denies Omar's charge, saying "it simply isn't true." She says she recognized that the city council votes weren't there to call a referendum on the question. There was no point to continue discussion and so she moved to end it. She says she has confirmed her account of what happened by going back and listening to the January 30, 2012, council meeting at which the issue was deliberated. She encourages voters to do the same.

I remember watching this drama play out in its first release. I reviewed it in "Campaign Promise? That Was Then". Here was my appraisal then:
Frankly, I was shocked with how cavalierly the council dismissed what I had considered to be a campaign promise. Not a promise as firm as, say, "Read my lips, no new taxes" but still, a consensus expressed during the campaign forums that it was time, after 25 years, to look into cleaning up our city charter and bringing it up to date. In one meeting, with no call for public input, with little or no homework evident on their own part, with no wrestling with conscience, the council quickly and decisively disposed of any further discussion of a charter review for this council term.
Source: The Wheel.
Still, in case my memory was faulty, in case the benefit of time might have me see things differently now, I took Maczka up on her call for voters to go back and watch it themselves. After the jump, what I learned from a second viewing.

First, we have to set the stage. For that, we have to go all the way back to the summer of 2011, when the newly-elected city council adopted a set of 57 "Near-Term Action Items" that would guide the council calendar for the 2011-2013 term. This is the one that set the events of that fateful day in January, 2012, in motion:
Utilize work sessions to discuss items of broad community interest specific to the following:

o Election v. Selection of Mayor - Review in time for May 2012 ballot consideration
o City Charter review
The work session of January 30, 2012, is when this near-term action item made it onto a work session agenda:
Worksession Item D
Review and Discuss Action Items Related to City Charter Review
This is where our little drama begins.

Act I: Curtain rises. Assistant City Manager Michelle Thames opens our play with a review of the history of the charter as background for the council's further discussion. After presenting the history, Thames lays out the time line the council faces to accomplish the first near-term action item:
Thames: In looking at May, 2012, looking at an election time line, our last day to be able to call an election would be Monday, March 5, so if you all were interested in pursuing that and wanted to get after it here in May, that's a pretty tight time line with March 5 coming up on us.
Note that this near-term action item, adopted in the summer of 2011, was the only one of the 57 action items that specified a completion date: May, 2012. Note that the deadline to call an election was even earlier than that, March 5, 2012. Note that this near-term action item didn't come before the council until January 30, 2012. The assistant city manager says "that's a pretty tight time line." Our play doesn't have a Sherlock Holmes, but with hindsight, knowing now how our drama plays out, do we need one? A more cynical audience might even have suspected foul play, a setup, right from the beginning, just from the timing of it all. But all the action surrounding the creation of the council calendar takes place offstage, before the curtain goes up on our little drama. The timing may portend a murder to come, but it proves nothing. Disregard those suspicions.

With hindsight, we know that we will end up with a dead body on our hands. Our goal is to determine if we have a case of murder and, if so, whodunnit. Amir points an accusing finger at Laura: "J'accuse." Laura indignantly responds, "Moi? Non!" Or something like that, maybe with a y'all or something in there. But let's not get ahead of the action on stage. Rewind the tape. Here's the accused discussing the first of the two near-term action items -- direct election of the mayor:
Maczka: Well, since we're looking at these separately, I have to say from my perspective, I can't really look at them separately. I know the short-term action item is to get this on the May ballot. And I've got to tell you, I don't think that it's as simple as just saying we're going to directly elect the mayor. I think if we're going down that path we're going to have to look at everything. We're going to have to look at the districting. We're going to have to look at the way we do business. And so, I think if we're going to do that, we need to give it the due diligence that it's deserved. To me that's looking at the charter. Like I said, I just think it's more complicated than saying, let's choose the mayor. That's my perspective.


Maczka: Since we jumped right into the charter discussion, can I make a suggestion? Basically, the short-term action item clearly says decide in time for the May election, I think we should vote. Do we the seven want to have the direct election of the mayor resolved tonight in order to have it on the May ballot? We can actually vote. [Indecipherable comments by others.] We've gotten a legal ... during a work session we can actually do a vote. So what I would like to see is let's put that one to rest. It may resurface in the conversation about the charter. But let's go ahead and get that action time taken care of because I'll be honest, I'm going to say it again. I don't think it's as simple ... because what place is it? Which one of us is going to give up our seat? [Omar interjects: Place 7.] OK, well you can vote how you want to. So that will weigh in your decision to vote. I just think that, kind of to Mr Mitchell's point, the way I view us is a board of trustees. One of the hardest things that I as a council person have had to kind of come to, I guess, get my feet under me is what is the role of the board of trustees? That is vision, goals, things like that. It is not the day-to-day operations. In that level, as a board of trustees, most corporations, most boards elect their chairman from within. I'm not saying we won't look at some of these other things. I just don't think we can pull it out and have it on the May vote. So I would move that we vote on the short-term action item of having this on the May ballot.
After all get a chance to speak, Laura makes a motion to cease discussion on the short-term action item. The motion passes 6-1. Laura is in the majority. Amir is in the minority.

So, did Laura oppose direct election of the mayor? It's hard to interpret her words any other way. She argued that she saw the city council as a board of trustees and most boards of trustees elect their chairman from within.

Did she vote to kill direct election of the mayor? It's hard to deny that, either. She said she couldn't separate the issue of how the mayor is chosen from everything else in the charter, then moved and voted to cease discussion. If that's not killing it, what would have been?

Let's move on to Act II, wherein the council discusses whether to do a full charter review. Here's Laura discussing that.
Maczka: Like Mr. Solomon I knew this was coming. Before I was elected and then after I was elected, I read the charter and I read it again. Michelle, I appreciate the details and you confirmed what my gut was and what talking to those who were involved, is that it's a very expensive process.

I kind of have two categories about this topic that I call the legalities and the realities. In terms of the legalities, I think absolutely, my biggest, my number one concern about this charter are the items that are in conflict with or superseded by state or federal laws. I think the city attorneys weighed in on this so I'd like to make that sure the legalities of the charter are addressed.

Moving on to the realities, when I think about what this undertaking is going to be for this city, if we're going to do it, we need to take the time and dedicate the resources to do it the right way. In my mind, what that involves, which was why I was saying we can't do this in the next 30 days. I don't think this is a 30 day process. I think it's going to take an extensive effort to determine who is actually going to sit on that commission because I think the danger, quite frankly, if we're all honest, is the personal agendas. We're going to have to do a very thorough job of making sure that we allow broad input from a whole variety of citizens. To me, that in itself is going to involve a lot of work on the city manager's office and the staff and the city secretary and the council because I think we're going to have to actually interview candidates to determine how we're going to choose this commission. Again, if that's what the will of the council is, I'm willing to do it. I just want us all to be very realistic about what we're going to undertake. As Michelle mentioned, more than a year, 36 meetings, and that was at a time when ... I know that life has gotten faster. I know it's hard to get ... shoot, it's hard to get a PTA meeting with a quorum. While it may have taken a year last time, I think we all need to be ready for something that's a little longer than that. I don't think that you can schedule 33 meetings in twelve months. That's a lot of meetings in a month.

I know where Amir falls on this, but I'll ask of everybody as we review the charter, I think each of us needs to say what needs to be changed because you undergo a charter review if you think things need to be changed. Kind of my bottom line, as I was really thinking about how I felt about this, you know we all were asked these questions during the campaign. Is it a charter review, and is it a commission? What I've learned through educating myself and input from those who have been there is that there's quite a few variations of what that means.

So, what I did was I went back to look at what we voted on for our agenda for the next two years. My concern is that we set a very aggressive agenda. I looked at where we'd ranked and I went through the top twenty five. For land use and development, we had six of our short-term action items under that category; for community vitality and neighborhood integrity, we had four; fiscal responsibility, four action items; economic development, three; communications, two; public services, one; environmental, two; marketing, one; governance, we had golf and council meeting efficiency, one each.

So I guess the question we have to ask ourselves, is this the most pressing issue facing this council? If we think it is, I will be in favor of jumping full force into it, but I think we all need to be very realistic in knowing that if we take this on, that's what this term is going to be about, it's going to be about the charter review. It's going to require our attention, it's going to require our input, and I'm willing to listen to my peers to determine whether each of us feels that this is the most important issue facing our community during this two year term. There's my soap box.
After all have a chance to speak, Mark Solomon makes a motion to cease discussion on the short-term action item and take no action at this time. The vote was in favor 5-2. Laura is in the majority. Amir (with Steve Mitchell) is in the minority.

And ... curtain.

Unfortunately, our little whodunnit doesn't have any smoking gun, no last minute confession. It's up to the audience to judge what they just witnessed. Let's review.

While deliberating either action item, did Laura Maczka say anything in support of direct election of the mayor? No. Nothing. Not a word.

Did she kill direct election of the mayor? Yes. She opposed direct election of the mayor. She opposed considering the issue separate from the larger issue of a full city charter review. Then she opposed that because of how long it would take and because she thought the city had more important things to do. She voted to cease discussion of both near-term action items. She had four accomplices in all this, but she was undeniably in on the killing.

Did Maczka "lead the charge" against direct election, as Omar alleges? She had the intent to kill it ("what I would like to see is let's put that one to rest"). She came prepared with a legal opinion that the council could kill it in a work session ("We've gotten a legal ..."). She spoke passionately against a charter review in this term ("There's my soap box"). But is that enough evidence to convict her of "leading the charge?" That's where Omar overplays his hand. She was only one of five council members who voted against both action items. Maczka may have spoken longer and more eloquently than the others, but there's no evidence she was leading anyone to vote differently than how they were going to anyway. No one had a change of heart during the deliberation. No one was even undecided going in. The votes were set before the curtain opened. Direct election was doomed from the start, even before Michelle Thames introduced it with a "pretty tight time line."

Omar's accusation of Maczka "leading the charge" is a tactical error on his part. By overplaying his hand, he lets Maczka avoid defending her opposition to direct election and instead gives her the opportunity to deny that she "led the charge" against it. Omar's tactical error might even be a blunder. His campaign is centered on principled leadership, yet here he is accusing Maczka of leadership, of all things. What's Omar's narrative? That Maczka is leading the charge or that she is just falling in line with the Richardson Coalition PAC's position? It's hard to make both impressions stick. Omar gives Maczka the opportunity to stand in front of the voters and forcefully deny an accusation, to present an image of herself as a strong leader, and avoid having to admit that she did, indeed, oppose direct election of the mayor. The foundation of Omar's campaign crumbles a little bit each time this scene plays out.

Popular dramas today almost always spawn sequels. This one is no exception. As it turned out, that body that was whisked off the stage last January didn't stay dead. A few months later, direct election of the mayor came back from the dead. A citizen petition did what the majority of the council said couldn't be done. The charter was amended in only one area -- how the mayor is chosen. In November, a referendum backed by 75% of Richardson's voters approved the charter amendment. Now, in May, 2013, in a final bit of dramatic irony, Laura Maczka is poised to reap the reward and become Richardson's first directly elected mayor in a half century. You can't make this stuff up.


Sassy Texan said...

This topic has more to do with just Laura and Amir, but that is the only race so we will speak to her specifically. The whole Council is lacking in initiative on this specific topic.

Amir is correct for the most part. Go back and look/listen to what Laura said. Laura is absolutely WRONG in her posturing of the procedural choices of who will be chosen for charter review commission and what staff's role will be in the process. The truth is they really do not have one.

She was against it because of one time issue of May and never once said that November is a ballot time also. So when did the direct election item appear on the ballot?

The general voting public gets to choose the charter commission so her ideas of keeping personal agendas at bay requires a mirror to everyone in the work session room.

Here is local government code 9.002

(a) 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?" The governing body shall by ordinance order the election if presented with a petition signed by at least 10 percent of the qualified voters of the municipality.
(b) The election ordinance shall provide for the election to be held on the date of the municipality's next general election scheduled after the 30th day but on or before the 90th day after the date the ordinance is adopted. However, if no general election is scheduled during that period that allows sufficient time to comply with other requirements of law, the election shall be ordered for the first authorized uniform election date prescribed by the Election Code that allows sufficient time to comply with other requirements of law and that occurs after the 30th day after the date the ordinance is adopted and published in a newspaper published in the municipality.
(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. 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.

There is nothing in the Charter or Local Government Code or the Texas Constitution that says the Council is a "Board of Trustees" to make decisions on a charter review commission. It is not their document to decide. It is their job to see that the requirements contained within are upheld. Period. One could say the misrepresentation was purposeful, but it is getting most tiresome to read and wonder why the lies.

Laura can say all day long it is complicated and lots of work, but it is only complicated if she wants to make it so. Here is one more instance where she has failed at understanding the responsibility of her position. She can go back and look at the Council term action items which are more vague than finite, but if she had done one simple little thing, sentiment might be very different. Take that city provided iPad and looked up the Charter and then to the reference of Local Government Code, she would know everything she said was completely misguided. The fact she was misled by staff is a completely different issue. And we all understand why they want to control the review.

This is a MAJOR issue for an assessment of her qualifications to be Mayor. And once again she has proven she is not ready.

Cheri Duncan-Hubert

Mark Steger said...

Cheri, Sec. 9.002 sets out the selection of a charter commission "to frame a new charter." The discussion on January 30, 2012, was not about that. It was about amending Richardson's charter. Sec. 9.004 sets out how that is done.

Sassy Texan said...

Mark, section d of 9.002 says The provisions of Subsections (a), (b), and (c) regarding the selection of a charter commission do not apply to the first charter election in a municipality.

Mark, this is NOT the first commission.


Mark Steger said...

Cheri, Sec. 9.002 applies to cities that want to discard their existing charter and "frame a new charter." The discussion on January 30, 2012, was not about that. It was about *amending* Richardson's existing charter, not discarding it and framing a new one. Sec. 9.004 sets out how to amend an existing charter.

Sassy Texan said...


Whether there is a reframing or a new one, that will be determined by the Charter Commission. So whatever needs to be done it is the responsibility of the Charter Commission. We are speaking on how the commission is selected/elected by the collective, not the adminstrative.

2007 is a prime example of a couple of specific issues to be changed/amended. And that is where 9.004 came into play.

Currently, no one is asking for anything specific other than a review and 9.002 defines that.

The specific point of Direct Election, ie a specific amendment, was accomplished to amend one non-compliant section of the Charter. The citizens handled that in the appropriate manner.

With reference to Jan 30, the discussion was upon two different topics. As I recall, Laura did not want to address the direct election without a full charter review.
And that only comes with the selection of a Charter Commission.
Welcome to 9.002!


Mark Steger said...

With all due respect, Sec. 9.002 does not come into play even with a full charter review. It only comes into play if the city intends to scrap its charter and frame a new one. No one has suggested that.

As set out in Sec. 9.004, the city council is empowered, "on its own motion," to submit to voters amendments to an existing charter. It can use a charter review commission (or not, at its decision) to identify the amendments that it will submit to the voters (or not, at its decision).

§ 9.004. CHARTER AMENDMENTS. (a) The governing body of a municipality on its own motion may submit a proposed charter amendment to the municipality's qualified voters for their approval at an election.

Sassy Texan said...

How then per "9.004' is the Charter Commission selected?

There is no language on their ability to do anything but submit an amendment to the voters IF they have a petition signed by qualified voters.

Exact language is:
The governing body of a municipality on its own motion may submit a proposed charter amendment to the municipality's qualified voters for their approval at an election. The governing body shall submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the municipality or 20,000, whichever number is the smaller.

That does not say anything about choosing or not choosing on their own merit. Nor does it say anything about their ability to choose a commission.

Mark Steger said...

§ 9.004. CHARTER AMENDMENTS. (a) The governing body of a municipality on its own motion may submit a proposed charter amendment to the municipality's qualified voters for their approval at an election.

The key language is "on its own motion." The city council does not need a charter commission to submit amendments to the voters. The city council can decide on these amendments in almost any way it wants. It can draw them up itself. It can rely on city staff or the city attorney. It can create a commission to make recommendations (which it then can accept or ignore). The key point is that all of these other sources are advisory only. The city council is empowered "on its own motion" to submit amendments to the voters.

You are confusing the "charter commission" defined in Sec 9.002 with what's informally called a charter review commission that the council would appoint and use to suggest amendments to the council for their consideration. Two different things.

(The language about petitions is how the citizens can force the council to do something if the council chooses not to submit an amendment to voters. It's what happened last year after the council voted to cease discussion on the matter. It's not what the council was talking about in January, 2012.)

Sassy Texan said...

I am not confusing them at all. In fact, I have taken a very large part of my life to read, understand and comprehend local governance. I continue to ask questions of difference agencies around the state. I have a very large library of documents for various ORR's around the state and this city.

Texas Constitution, Article 11, Section 5 says no Charter shall be inconsistent with the Constitution or statute. Just because the charter has some very large consistency issues does not mean we can confuse it among ourselves.

You took sentence one and are excluding sentence two of 9.004 which defines how they can submit an amendment. They can submit amendments IF.....

9.002 explains in part (d) that there is more than one charter commission by saying "Certain provisions do not apply to the first one....


Mark Steger said...

Sentence 1 of Sec 9.004 says the council "on its own motion" "may submit..." Sentence 2 says the council "shall submit" "if the submission is supported by a petition."

First sentence: council is free to do so on its own. Second sentence: council is forced to do so if citizens petition. Different matters.

Everything the council was discussing on January 30, 2012 had to do with the first sentence. There was no petition at the time, so the second sentence didn't apply to what the council was considering at the time.

Sassy Texan said...

So if I am to understand you correctly, the two sentences in the same paragraph, 9.004, have different meanings by your definition, when in larger context different meanings are sequestered in subsections (like a,b,c etc)?

Mark Steger said...

The structure of paragraph (a) of Sec. 9.004 is identical to the structure of paragraph (a) of Sec. 9.002. The first sentence specifies what the city council can do of its own free will and the second sentence says what the city council must do if presented a petition by the citizens.

Sassy Texan said...

So where does charter review fit into that statute?

Mark Steger said...

Already explained. The municipal code does not *require* the city council to form a commission for the purposes of reviewing the charter and drafting amendments. It can do so if it wants. Or not. As I said before, "The city council can decide on these amendments in almost any way it wants. It can draw them up itself. It can rely on city staff or the city attorney. It can create a commission to make recommendations (which it then can accept or ignore). The key point is that all of these other sources are advisory only. The city council is empowered 'on its own motion' to submit amendments to the voters."

Mark Steger said...

Readers who have persevered this far might have picked up on an irony. In the original blog post, I said Omar was making a tactical error by criticizing Maczka for "leading the charge" against direct election of the mayor, allowing her to avoid having to explain why she was opposed to direct election of the mayor at all.

Now, in this long comment thread, another person has decided to attack Mazcka for the wrong thing. The comment thread is lost in the weeds about the legal procedures of how city charter amendments are drafted and submitted to the voters. Once again, Maczka could (if she were somehow drawn into this debate, which she's smart enough to avoid) talk endlessly about municipal code niceties, sounding all smart and in control, and once again skate from having to explain why she opposed direct election of the mayor at all.

Maczka is golden.

Cheri, if you want the last word on the topic, have at it.

mccalpin said...

Prior to this seemingly interminable thread, I had already taken it upon myself to review the Council discussion from the date in question - kudos to you, Mark, for writing about it.

The discussion is eye-opening, because the more you listen, the more you realize that Laura didn't lead the charge against direct election of the mayor, she lead the charge to – as we say in Texas, "fish or cut bait"...that is, [Laura] “I’ve got to tell you, I don’t think that it’s a simple as just saying we’re going to directly elect the mayor.”

For that reason, Laura argued that direct election of the mayor should be part of an overall charter review, and [Laura] “If we are going to do that (look at everything), we need to give it the due diligence that it deserves.”

From the discussion, it was clear that Steve Mitchell explicitly agreed with her, and that Scott Dunn and Mark Solomon were not interested in changing the way to elect the mayor anyway.

Mark's comments began to wander away from the subject of election of the mayor onto the subject of a charter commission, so Laura brought the discussion back on point. She then flat out asked if the Council wanted to vote “tonight” on whether to put direct election of the mayor on the May 12 ballot as the near term action item stated. She wanted that action item to be put to rest, even if it resurfaced later in the charter commission discussion.

Thus, what Laura was showing was the leadership to stand up and state that this subject wasn't going anywhere so let's vote on it and move on. And, indeed, that's what happened. The Council voted 6-1 against the near term action item of putting direct election of the mayor in the May 2012 ballot.

Then came the discussion on whether or not to start on a charter review commission. Indeed, each Council candidate in the 2011 election had called for charter review.

Laura asked, "Was this the most pressing issue?" She continued, "If we think it is, then I will be in favor of jumping full course into it, but I think we need to be very realistic in knowing that if we take this on, what this term will be about will be the charter review."

Curiously, Amir seemed to agree, "I agree with Councilman Maczka, I agree that there’s a lot more important things. I agree that this would take a lot of time if we did decide to do it."

He then correctly pointed out the seemingly odd contradiction that people were opposed to the direct election of mayor because it would take a lot of thought, but that they were also opposed to a charter review commission at this point because it would take a lot of thought. But then he suggested that the Council direct the staff to go off and investigate what would be involved short of a full review to determine what direct election of mayor would need - but the Council had just clearly indicated that they didn't want this.

Why did he do this? Because a full charter review wasn’t actually very important to either Amir or Laura at the start of the term: both of them rated “Utilize work sessions to discuss community interest of a City Charter Review” as “52”, that is, the lowest interest possible. Clearly, what was important to Amir was only direct election of the mayor, and what was important to Laura was moving on.

In terms of the original post, “Who Killed Direct Election?”, the answer is clear – the Council had zero interest (outside of Amir) in pursuing direct election of the mayor, and all Laura did was to acknowledge that fact and ask the Council to move on.


mccalpin said...

And all the discussion that follows in this thread about charter commissions and whatnot is predicated on one person’s misinterpretation of state law. As Mark correctly states, section 9.002 refers ONLY to the initial adoption of a new charter – so think the Texas City Attorneys as shown in a series of presentations at their conferences – see page 11 for their 2013 session (the 2099 and 2011 sessions say the identical thing). Indeed, even the state code itself states “This chapter applies to the adoption or amendment of a municipal charter”. But the word “amendment” does not appear until Section 9.004, implying – as the Texas City Attorneys think – that sections 9.002 and 9.003 apply only to the initial adoption of a home rule charter, and not subsequent amendments thereof.


Sassy Texan said...

Thank you for working thru the discussion. BTW, can a person have the last word if they ask YOU a question? lol But Mr McCalpin filled the bill by doing so. Completely confident he would. If you think many do not understand after a lawsuit and a petition drive, then you might rethink your conclusion. Have a wonderful day.