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Council mulling status of ex-officio Planning Commissioners

Wednesday, December 7, 2011 by Elizabeth Pagano

After a short conversation Tuesday, the Council Audit and Finance Committee asked city staff to bring forward two recommendations related to the role of ex-officio members of the Planning Commission.


A little-known part of the city’s charter allows four people to sit as ex officio members of the Planning Commission: the chair of the Board of Adjustment, the president of Austin ISD, the city manager and the director of the city’s Public Works Department.


No one had taken advantage of that ex-officio status until Jeff Jack, chair of the BOA, started attending Planning Commission meetings. Jack is now asserting that he has a right to vote on commission agenda matters. Others –notably several members of the commission – disagree with his interpretation.


On Tuesday, the City Council Audit and Finance Committee, discussed the issue and arrived at no definitive decision. Instead, they directed staff to explore the option of not allowing ex-officios to vote, as well as the option of directing that the City Manager and Director of Public Works be non-voting members, but allowing the AISD representative and BOA chair to be voting members on the Planning Commission.


Council Member Kathie Tovo pushed for the alternative option that would allow some ex-officio members to vote.


“Neither the City Code, nor the Planning Commission bylaws acknowledge or address the role of these ex-officios. Our conclusion, therefore, is that they are not prohibited from voting. But evidence suggests that they were not intended to vote,” explained Assistant City Attorney Brent Lloyd.


However, after the meeting Jack told In Fact Daily, “My reading of the charter is that you can vote. City and legal have agreed that is the case. I have to assume that when the charter was written, the people who wrote it understood what Robert’s Rules meant by ex-officio. I think it is a reasonable situation to have the expertise of the Chair of the Board of Adjustment, and the expertise of the President of the School Board involved. I do believe that the city manager and the Director of Public Works are represented by staff at every Planning Commission meeting, so there might be a redundancy there.”


Lloyd told the committee that, to his knowledge, there hadn’t previously been active participation by any ex-officio. Planning Commission Chair Dave Sullivan told In Fact Daily that, after researching the matter at the Austin History Center, he was unable to find an instance of anyone taking advantage of ex-officio standing either.


Allowing the BOA chair to vote at the Planning Commission could cause problems at the BOA. “Voting by the BOA chair may, in certain cases, were that to be authorized, were that to occur, present certain cases where he or she would need to recuse themselves in a variance, or interpretation appeal that came before the BOA,” said Lloyd, who went on to explain that it may present a conflict of interest to participate in two boards regardless of whether they could vote in an ex-officio capacity.


Sullivan told In Fact Daily that the Planning Commission’s concerns were not about a specific person, but larger issues like the ramifications of one person voting on two different boards, and how allowing any of the ex-officio members to vote would affect their rulings, as in the case of a 5-5 tie.


“It’s not about him, it’s about the whole issue of what to do with ex-officio members. I am convinced in my heart that the intent was for ex-officio members to be advisors. I have some evidence to that, but, as Brent (Lloyd) said, it’s not defining evidence. It’s not proof. But I’m satisfied that in 1953 they thought that ex-officio members advised boards. That is what they did,” said Sullivan.


“My only concern is how you clarify the situation,” Jack told In Fact Daily. “Whether it’s best to do it through a bylaws change, or a code change or a charter change. I’m just concerned that we fix the issue correctly and not try and put a band-aid on it that comes off later.”


Jack told In Fact Daily that he will continue to sit on the dais until the issue is resolved.


“I think it is a precedent-setting situation. The presumption is that the people who wrote our charter didn’t know what they were doing. I don’t have that same presumption,” said Jack.


Sullivan seemed to look forward to resolution of the matter also.


“It’s something really troublesome to me, because it’s kind of down in the minutiae. Nobody really cares about it except the people that pay attention to the Planning Commission, and yet it’s absorbing a tremendous amount of my time, trying to deal with this when I want to be focusing on the Comprehensive Plan,” Sullivan told In Fact Daily.

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