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Police, Instant Runoff supporters seek injunctions Two lawsuits have been filed this month by organizations wishing to change the way Austin elects its City Council members. Last week members of the Austin Police Association, Catherine M. Haggerty and the Combined Law Enforcement Associations of Texas sued the City of Austin over the Charter Amendment requiring two-term incumbents who wish to run for re-election to collect signatures from five percent of the city’s qualified voters—currently estimated to be about 21,000.

Monday, January 28, 2002 by

The plaintiffs in the lawsuit say that the term limitation provision is inconsistent with State law and therefore illegal. “Those illegal charter provisions, if not enjoined, threaten to prevent the rights of the plaintiff police officers and other qualified voters to vote in favor of experienced candidates.”

The provision was added to the City Charter in 1994. The Texas Secretary of State was asked whether the provision was in conflict with state law, which requires only one-half of one percent of the number of voters participating in the last mayoral election. In this case that number would be 178. The Secretary of State declined to tell Austin’s City Attorney that following the charter would violate state law. “In this situation, it is not clear that there is a conflict between state election law and the Charter.” (See In Fact Daily, Nov. 21, 2001.)

Mike McKetta of Graves Dougherty Hearon & Moody filed suit on behalf of the plaintiffs. Detective Haggerty, a plaintiff, talked to City Clerk Shirley Brown about the number of signatures Brown would be requiring from incumbents Daryl Slusher, Jackie Goodman and Beverly Griffith, according to the suit. The pleadings say, “When asked the number of signatures that she would require, the City Clerk said the number was somewhere between 18,000 and 20,000 but could not be determined until a petition is actually submitted. She [Brown] said that on the day the petition is submitted, she would determine the then number of qualified voters and could calculate what 5 percent of that number is. The City Clerk stated that the petition requirement was not covered by State law, but by the City of Austin charter.”

The lawsuit states that Haggerty wishes to vote for an incumbent Council member who is attempting to gather signatures to run for re-election. Griffith announced Jan. 16 that she had reached 13,000, but she appeared to be several thousand ahead of Goodman and Slusher, who started later due to financial constraints. Still, Griffith would have to gather at least 1,000 signatures a week—and the others more—to reach an uncertain goal by March 20, the filing deadline. At any rate, the three know they need to have the signatures well ahead of time to give the clerk time to count them. If they lack the number required, then they would still have the option of switching seats, which is not prohibited by the charter.

Mike Sheffield, president of the Austin Police Association, said he is hopeful that an injunction hearing can be scheduled soon. “I think everybody wants the question answered . . . maybe two or three weeks.”

Meanwhile, Austinites for IRV (instant runoff voting) Coalition, the Austin chapter of NOW and three individuals have sued the Texas Secretary of State to overturn her decision on IRV. A hearing on the plaintiffs’ request for a Temporary Injunction is scheduled for Feb. 6.

Fred Lewis, who is an attorney and is also associated with Campaigns for People, filed the suit. Lewis was a member of the 2000 Charter Revision Commission, which recommend that Austin adopt IRV.

According to Lewis, IRV is used in Ireland, Australia and London, as well as at the Federal Reserve Board, the Academy Awards and the Heisman Trophy. “It allows the voters to go to the polls only once, but still elect candidates by a majority of the voters. It works as follows: when voters go to the polls, they rank candidates as to their first choice, second choice, third, fourth and so on. If a candidate does not receive a clear majority of votes on the first count, a series of runoff counts are then conducted until one candidate receives a majority. After the first count, the candidate who received the fewest first place ballots is eliminated and their second place votes re-allocated to the remaining candidates. All ballots are then tabulated, with each ballot counting as one vote for each voter’s favorite candidate who is still in contention. Voters who chose the now-eliminated candidate have to support their second choice candidate—just as if they were voting in a traditional two-round runoff election—but all other voters get to continue supporting their top candidate. This process continues until a candidate receives a majority,” the suit says.

After the Charter Commission made its report, those favoring IRV met with various groups, and began to gain support for putting the matter on the next Charter Election ballot. That date slipped from last fall to May 4, 2002. However, the City Attorney’s Office requested a formal opinion as to the legality of IRV and, according to the lawsuit, “In late July, 2001, the Secretary of State issued a formal written legal opinion that home rule cities, such as Austin, were pre-empted from enacting IRV because it was in conflict with the Texas Election Code.”

The plaintiffs in that suit hope a state district court judge will rule that the Secretary of State has used the wrong legal standard for analyzing home rule cities’ powers and that the law does not in fact outlaw IRV.

Meanwhile, on the campaign trail . . .

Council Members Beverly Griffith, Daryl Slusher and Jackie Goodman continue to collect signatures, racing to meet a deadline just a few weeks away. Each must gather about 21,000 valid signatures to beat the anti-incumbency provision in the City Charter—or they could simply switch seats. Of course, they don’t want to do that. But the option will remain open until two of them have filed for their old seats. Mayor Gus Garcia served longer as a Council member than any of the three and he switched from Place 5 to Place 2, but not because of the re-election rule. He had hoped that a new Hispanic face could take over in his old spot while he moved to another seat. It didn’t work out that way. Garcia was elected to Place 2 and Bill Spelman won Place 5. Now Council Member Raul Alvarez is in Place 2.

The three incumbents were all at Antone’s last night, gathering signatures and a few more campaign dollars. Griffith said her signature-gatherers have a quota of 1500 per week, but the past week has been much better. She said she may be up to 17,000 by Tuesday. Every Tuesday, she explained, she holds a pep rally and signature counting party in her real estate office. Husband Baile Griffith, her number 1 supporter, said she knows how many there are because she writes the checks—at a dollar per signature—to her workers.

Slusher, on the other hand, would only say that he had “between 7,000 and 10,000.” Goodman said she didn’t know how many signatures had come in, but if all the petitions that are out come back full, she would have only half the number she needs. “So, it’s definitely hustle time.”

All three said they were surprised by the APA lawsuit, although Goodman and Slusher said they had heard rumors that it might happen. Slusher said he wants to have his petitions in to the City Clerk by the first week of March, but will probably have to wait until after the March primary, a prime day for gathering signatures. “I don’t want to put the city in a position where if I get knocked off the ballot, citizens would get to choose between Jennifer Gale and Marcos de Leon or another perennial candidate.”

Should Council appoint Police Monitor, others?

The Charter Revision Committee is set tonight to discuss several proposals on restructuring city management. The proposals, if eventually approved by voters, would require some high-profile city employees to report directly to the City Council instead of the City Manager.

One proposal is to allow the City Council to directly appoint the civilian Police Monitor. City Manager Jesus Garza recently hired former City Attorney Iris Jones for the monitor position. Those who worked for the creation of the post have criticized the deal reached between the city and the Austin Police Association. They claim the deal signed by both parties reduced the power of the position and believe having the monitor report directly to the Council would increase the degree of accountability.

During a briefing last week from Assistant City Attorney Gaye Brewer, committee members discussed the legal, practical and political hurdles to overcome in making that change. She gave commissioners a brief history of the meet-and-confer process that resulted in the Police Monitor position, and reminded commissioners that Austin was only allowed to use that process for labor negotiations after receiving special permission from the State Legislature.

Commission Member Clint Smith warned fellow members that any change to the structure, even if approved by voters, would also need the support of the local police union. Since the rules for meet-and-confer were approved by the State Legislature, Smith said, union representatives could take their complaints directly to that body if they disagreed with local voter-approved changes. “The Combined Law Enforcement Associations of Texas (CLEAT) have immense power with their influence at the legislature,” Smith said. “Whatever we did or didn’t do here could be undone by the legislature next session.” While Committee Member Martha Cotera said she believed there was strong political support for having the Police Monitor report directly to the Council, Smith said he believed it would be a politically difficult procedure and could result in the legislature restricting use of the meet-and-confer process.

If a change to the Police Monitor position were to be put on the ballot by the Council and approved by voters, it would not impact the current agreement between the police union and the city. “There’s no legal impediment to moving the monitor under the City Council, but the contract actually calls for the monitor to be appointed by the city manager,” said Brewer. That would only occur after the current agreement expires in September 2003.

Changes at Austin Energy would be complex The other significant change being discussed by the Charter Revision Committee involves Austin Energy. The discussion originated with a request from a member of the City Council that the committee consider whether the Council should have a role in appointing the General Manger of Austin Energy. The person in that position, like the heads of other city departments, reports to the City Manager. Earlier this month, the Electric Utility Commission sent a separate proposal to the Charter Revision Committee recommending the creation of an independent electric utility board. The proposal calls for that independent board to appoint Austin Energy’s CEO. The Electric Utility Commission also called for the independent board to oversee personnel, approve the utility’s budget and develop policy, while the City Council would continue to approve rates and issue debt. Members of the new board would be appointed by the Council to four-year terms, but would not be subject to term limits. A similar system is used in San Antonio (http://www.citypublicservice.com).

Assistant City Attorney Robert Kahn told the commission the transition to a more independent utility, if approved by voters, would be complicated. “There are other things in the charter that would have to be changed,” Kahn said. “If we were to have an independent board, I suppose what would happen is . . . we would have our own human resources, our own personnel,” Kahn said. “Retirement, health benefits . . . all those issues would have to be considered.” Making changes in those areas could involve splitting up administrative functions Austin Energy shares with other city departments. In addition, Kahn said, a new system would have an impact on bonds issued to finance Austin Energy projects. “You’d also have to obtain bond-holder approval, since right now the official statement is that our utility is run and regulated by the City Council. There’s a notice issue there. That process usually takes about six to nine months.”

The Charter Revision Committee could make recommendations on both the Police Monitor and electric utility issues tonight. The group is also scheduled to discuss several other proposals for clarifying language in the charter suggested by the City Manager and the City Clerk.

Friday.

Management discussions . . . Mayor Gus Garcia and City Manager Jesus Garza have come up with a transition plan for the city manager’s office. The two will be giving the media a preview of that plan today at 10:30am. The City Council will then discuss the matter in executive session during Wednesday’s work session, and could vote on it Thursday . . . Educational excellence committee begins work today . . . The Mayor’s Committee on K-12 Educational Excellence will hold its first meeting at 5pm today at Waller Creek Plaza. Brad Duggan, executive director of Just For Kids, which ranked Texas Schools based on TAAS data, is scheduled to address the group. AISD was ranked as the worst of Texas’ urban school districts in educating minority and low-income students

© 2002 In Fact News, Inc. All rights reserved.

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