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Council ordered to rewrite SOS ballot language

Friday, March 31, 2006 by

Judge rules that Open Government cost estimate constitutes electioneering

A state district judge ruled Thursday that the Austin City Council must rewrite the ballot language for two proposed charter amendments on the May 13 city election. Judge Stephen Yelenosky issued a temporary injunction on use of the ballot language and gave the Council until 5pm Monday to provide a proper version.

Yelenosky said the Council unfairly described the two citizen-initiated amendments in negative terms, used improper examples of potential consequences, improperly used words like “any” and “all” and used an unsubstantiated cost estimate and tax projection for the Open Government amendment. The ruling came in a lawsuit filed last week by several citizens, including Austin Neighborhoods Council Vice President Jeff Jack, political consultant Glen Maxey, and others.

The first amendment, called the Open Government Amendment, would force the city to make most public information readily available on the internet. The city had estimated the cost at $36 million the first year and $12 million in subsequent years.

The second amendment, the SOS Amendment, calls for the city to steer development away from the Barton Springs Zone of the Edwards Aquifer. Voters in the city’s ETJ will be able to vote on this change in the charter. Plaintiffs had asked the judge to order the city to allow those voters to participate in the balloting on the Open Government Amendment also, but he denied that request.

Sources at the city told In Fact Daily that the Council would likely meet in an emergency called meeting at 10am on Monday to consider new ballot language.

Members of the SOS Alliance, which instigated collection of signatures for the two charter amendment petitions, were pleased with the ruling.

“We are very happy with the outcome,” said SOS Executive Director Bill Bunch, who assisted lead counsel Buck Wood and Deputy Director Brad Rockwell in arguing the case. “We hope the city will respect the court’s ruling and work with us to find the proper ballot wording.”

Maxey, who managed the campaign to get petition signatures for both amendments, said it was a win for the voters.

“Anytime the government overreaches it powers, it needs to be reined in,” he said. “The Council members clearly said they wanted to use the ballot language to influence the way people voted on this, and the judge said they couldn’t do that. Now the issues surrounding this can be debated in public and not on the ballot.”

Anne Morgan, chief of litigation for the city’s Law Department, said the Council will only need to change the parts of ballot language that the judge found to be improper.

“Because the judge found most of the language okay, we’re hopeful that the Council can tweak that language and go forward,” she said. “I think the judge gave pretty clear direction to the City Council.”

Morgan gave no indication whether the city would appeal the ruling but an appeal seems unlikely.

C. Robert Heath of Bickerstaff, Heath, Pollan & Caroom, made two main arguments for the city against the plaintiffs’ case.

He argued that, based on case law, the court could not limit the discretion of the City Council in framing the ballot language as long as voters could tell the difference between the various amendments on the ballot.

“It is entrusted to the elected City Council to write the ballot language,” he said. “Their discretion in the matter is limited only by the common law standard that the voter not be deceived,”

Heath also argued that there was not sufficient time for election officials to set the ballot properly and the suit had already delayed that process beyond the Secretary of State’s recommended deadline.

The judge ruled against the city on both arguments.

With Thursday being a non-meeting day, many members of the City Council were either out of town or away from their offices when the ruling was made. In Fact Daily reached Council Member Lee Leffingwell late Thursday, who said he felt that having the $36 million cost estimate in the Open Government ballot language was critical.

"I felt very strongly that it was important because we had this financial analysis,” he said. “I would of course be disappointed if that can't be included because if a voter votes for that and then they find out,” the cost they will be very unhappy. “I'm disappointed. I don’t think the voters would be fully informed (without that information). Those are the numbers that are going to have to be used in budget preparation.”

Mayor Will Wynn said the Council will deal with whatever issues the judge had with the ballot language.

“My understanding was the judge's ruling was 'close, but no cigar'; and we want to have the cigar,” he said. “So we want to go correct whatever handful of words the judge would suggest wouldn't be appropriate. It is a big challenge to take an ordinance that one hadn't seen before. We had to (analyze it) in a few days … How do you condense four or five pages into four or five sentences? We want to get it right.”

Testimony from two key witnesses appeared to make the case for SOS. Travis County Clerk Dana DeBouvier testified that she has held up completing the May 13 ballots until the outcome of the lawsuit, but noted that there was still time to complete and “lock down” the ballots if new ballot language was available early next week.

“The Secretary of State recommends that the latest date we send out mail ballots is 38 days before the election date,” she said, but admitted under cross examination that the recommendation was not mandatory and that ballots could be mailed at a later date.

Russell Klugman, a consulting software engineer, refuted much of the testimony by the city’s chief information officer, Peter Collins. On the stand, Collins defended his $36 million estimate of the cost impact of the Open Government Amendment in the first year. Klugman, however, said he reviewed the estimate and said it was not done by industry standards, and contained many unverifiable “soft numbers” in its conclusions.

In his ruling, Judge Yelenosky said that the Council misused its discretion in setting the ballot language.

“The permissible discretion must be exercised so as to present a fair portrayal of the measure’s chief features,” he said. “This (ballot language) is tantamount to an argument to the voters.”

Yelenosky said specifically that the ballot language “fell short” by naming examples that are not representative of the whole or that are exclusively negative (referring to the Library Department and the Health Department but not others required to put email online).

Although the SOS Amendment would prohibit all sorts of subsidies in the Barton Springs Zone, the examples the city chose to use on the ballot, solar energy rebates and SMART Housing incentives, would elicit a negative vote, so it would be preferable to mix those causing positive and negative reactions or not to list any examples at all, the judge said. He also said the ballot language was flawed in using the terms any and all when there were clear exceptions in the amendment; and stating the cost estimate and referencing a tax increase when the city concedes the Open Government Amendment does not entail a tax increase.

County to air conservation ordinance

Staff to poll stakeholders on plan to dedicate half of developments to open space

Travis County is ready to take a proposed conservation development ordinance – a popular tool in other areas of the country to preserve sensitive land in areas ripe for development – out to stakeholders for discussion over the next 45 days.

Joe Gieselman, executive director of Transportation and Natural Development, presented an overview of the ordinance with consultant Joe Lessard and planner Wendy Scaperotta at a work session earlier this month. Gieselman described the ordinance as one component in the county’s overall parks and open space strategy, a tool that could encourage developers to preserve sensitive ecological features of the county.

Under the ordinance, a developer would agree to plan and dedicate at least half of a subdivision’s gross acreage to open space or natural buffers. The effort would be voluntary and incentive based, intended for a few developers who recognize the county is willing to offer an incentive to preserve land within a planning community.

Gieselman does not expect widespread use of the ordinance. Instead, he describes it as a “niche,” one that developers would use when turning raw land into subdivisions. In return for a developer’s commitment to significant conservation easements, the county could agree to waive fees or shorten the approval process.

Lessard described the process as not unlike a golf course community. Planners build the golf course and then build the community around it. The planner of a development under the conservation development ordinance, recognizing critical environmental features, would build and plan development around critical environmental features. Such a commitment to open space – just as a golf course community has a commitment to the open space of a golf course – often makes the land more valuable to homeowners.

The draft of the ordinance, modeled on other programs across the nation, does set some parameters for the conservation development. Guidelines would include, among other things, a commitment of at least 50 percent to green space, and that space would have to be at least 10 acres. Some variances might be offered for critical land. The features within that land must be deemed as significantly meaningful, and a portion should be set aside as a scenic buffer along the development’s roadways.

At this week’s Commissioners Court meeting, Gieselman asked for permission to start meeting with stakeholders to discuss the ordinance. Commissioners have set a timeline of about 45 days for Gieselman to shop the proposal to various stakeholder groups.

The county’s commitment stands at 3.5 acres per 1,000 residents. Scaperotta, in her presentation, did note that the county now owns 11,000 acres, almost half of which is in the Balcones Canyonlands Preserves. About 1,500 acres is now devoted to metro parks. Areas seen as critical when it came to parkland were Southwest Travis County, as well as the Colorado River and the State Highway 130 corridor.

Preferences among users were, first and foremost, walking, followed by bicycle-pedestrian activities. Scaperotta noted those preferences, she said, to point out that team sports should not overshadow individual activity in a final plan for parks and open space in the county. Commissioner Ron Davis also noted the need for preservation, and specifically preservation along the county’s creeks.

©2006 In Fact News, Inc. All rights reserved.

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