Wednesday, October 7, 2015

Missing Review. Missing Petition.

Don't get into online arguments. No one ever changes his mind. No one ever wins. Good advice? Yes, as far as it goes. But what if winning isn't the only goal? Sometimes there's value in just understanding the root of a disagreement, even if no one changes his mind. If the discussion leaves you comfortable with the foundation of your argument, then you can feel comfortable with what you build on that foundation. The argument over Richardson's upcoming charter amendment election is a case in point.

There are some people who are adamant that the election is invalid, illegal even. Peel back their arguments and eventually you get to the core.

Richardson Ordinance 4075 created a "Charter Commission" to review the city charter for the purpose of making recommendations to the City Council for appropriate amendments. The ordinance didn't call it a "Charter Review Commission." It called it a "Charter Commission." Is the missing word "Review" critical?

Section 9.002 of Texas Local Government Code specifies how a charter commission can be formed to "frame a new charter". It requires election of the commission's membership. The Richardson city council appointed the members of the recent charter commission. Therefore, according to some critics, the charter commission is invalid. Therefore the election is invalid. The end.

Of course, there are answers to this.

First, the Richardson city council didn't create a charter commission as described in LGC Section 9.002. The city isn't "fram[ing] a new charter", the sole subject of Section 9.002. Instead, it's amending an existing charter, which is regulated by LGC Section 9.004. To guide it, the city council created a charter commission as it's authorized to do by Article 9 of the city charter. It can call commissions anything it wants. It just happened to call this commission a charter commission. Same name as Section 9.002 but a different beast. Section 9.002 directs how to create a charter commission to "frame a new charter." It doesn't prohibit creating a charter commission for other purposes, say, advising the city council on amending the charter, as described in Section 9.004. Confusing, yes, maybe even sloppy work on the city's part, but legally not an issue.

Second, so what? Suppose a judge agreed that because the ordinance called it a "charter commission" that it had to conform to the rules set out in LGC Section 9.002. And because it didn't, it's invalid. So what? According to LGC Section 9.004, the section regulating amending city charters, the city council "on its own motion may submit a proposed charter amendment to the municipality's qualified voters for their approval at an election." The city council didn't even need a charter commission. So even if the charter commission itself is declared invalid, the election itself wouldn't be. The council can still call a charter amendment election "on its own motion." Which is what it did in any case. It never relied on the existence of a charter commission to decide to call an election "on its own motion."

In short, calling it a charter commission instead of a charter review commission did not invalidate it and even if it did, the city council didn't need it to call the election.

So what about the missing petition?
(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 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.
According to critics, there was no petition, therefore an election is invalid. What about the first sentence in Section 9.004, the one that says the city council, "on its own motion" may submit charter amendments to the voters? Well, these critics ignore that phrase "on its own motion" and totally invent another phrase altogether, adding a "provided that" between the first and second sentences. In other words, they read Section 9.004 as saying a city council can call an election "provided that" it also gets a petition signed by voters to call an election.

There is an answer to this, too.

There's no "provided that" in the text of the law. The two sentences are independent. The first says what the city council "may" do "on its own motion." No petitions needed. What if the city council doesn't want to do this? That's where the second sentence comes in. It says the city council "shall" call an election if presented with a petition signed by voters. The second sentence is the way voters can force the hand of a city council unwilling to exercise the power granted to it by the first sentence.

So much for the missing review. So much for the missing petition. I don't expect the critics to change their minds. They will go to their graves believing this charter amendment election is invalid. But at least I tracked down their arguments to their roots -- a misundertanding of Section 9 of the Local Government Code. That will have to be enough.

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