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Council faces legal action over wording of two ballot initiatives

Monday, August 13, 2018 by Jack Craver

Supporters of two ballot initiatives are threatening legal action against the city of Austin over ballot language that they claim City Council crafted to mislead voters.

Just after midnight on Friday, Council approved language for 11 separate propositions that voters will have the opportunity to approve or reject in November. One of those is a measure sought by opponents of CodeNEXT that would require a waiting period and voter approval whenever the city does a “comprehensive revision” of the Land Development Code. Another proposition, which garnered 33,000 signatures on its petition, would require the city to hire an independent consultant to conduct a comprehensive “efficiency audit” of city departments.

Council initially declined to put the CodeNEXT measure on the ballot based on advice from city attorneys, who pointed to a state statute that says zoning cannot be subjected to citizen initiatives. However, a judge earlier this month ruled that the city had to put the initiative on the ballot.

As for the efficiency audit, nobody tried to block it from going on the ballot, but most Council members are clearly skeptical of the proposition, particularly since the campaign was entirely funded by a group run by conservative activists that did not disclose its donors.

However, Council has considerable discretion in the language that describes the proposition on the ballot.

On the land development measure, the controversy centered on whether to include the term “CodeNEXT” in the proposition. Supporters of the measure, including the four members of Council who had consistently pushed for subjecting CodeNEXT to voter approval, said that members of the public supported the initiative with CodeNEXT in mind and that that term was what they would expect to see on the ballot.

However, the same Council members who had initially opposed putting the issue on the ballot supported language crafted by Council Member Ann Kitchen, which does not include the term CodeNEXT and describes the waiting period for land use code revisions as “for up to three years.”

Mayor Steve Adler said that he believed that Kitchen’s language was more accurate. Council had voted earlier that day to abandon CodeNEXT, he noted, and therefore the most meaningful consequence of the proposed ordinance would be on future attempts to overhaul the Land Development Code. He also defended the inclusion of the three-year timeline, which others described as a scare tactic, as accurate.

Bill Bunch, executive director of the Save Our Springs Alliance, and a backer of both of the ballot initiatives, accused Council of “rigging the ballot.”

Kitchen’s proposed language was approved, 6-5, with Mayor Pro Tem Kathie Tovo and Council members Leslie Pool, Ora Houston, Alison Alter and Ellen Troxclair in dissent.

Supporters of the efficiency audit had suggested a simple, one-sentence proposition: “Shall a city ordinance be adopted requiring a comprehensive, independent, third-party audit of all city operations and budget?”

However, the language Council ultimately approved adds a number of conditions that make the proposed measure significantly less attractive: “Without using the existing internal City Auditor or existing independent external auditor, shall the City Code be amended to require an efficiency study of the City’s operational and fiscal performance performed by a third-party audit consultant, at an estimated cost of $1 million-$5 million?”

Michael Searle, a former aide to Troxclair who led the campaign for the proposition, said that Council was putting in place complicated and misleading ballot language to try to “undermine the will” of the more than 30,000 people who had signed the petition.

“You’re using the ballot language as a political advertisement,” said Searle. “It’s obviously intended to get people to vote against it.”

Searle argued that not only is the language biased, it inaccurately suggests that the independent auditor proposed in the initiative would be duplicating a function already served by the city auditor. In fact, he said, the city auditor, whom he praised, specializes in accounting for city spending, not evaluating how to achieve savings in programs.

Troxclair, Houston, Alter and Pool supported Searle’s contention and tried unsuccessfully to put in place simpler language. After those efforts were defeated, Troxclair proposed adding language to the proposition saying that the audit could lead to savings of $160 million. That too was defeated.

Troxclair was also stymied in her attempt to get Council to simply vote to adopt the efficiency audit, without putting it on the ballot. That option was listed as a separate item on the Council agenda, but Adler refused to take it up, saying that if the efficiency audit was put on the ballot there was no need for Council to vote on the measure.

Council Member Jimmy Flannigan said that he would support adopting the ordinance to put in place the efficiency audit. But, he said, since it was going to be placed on the ballot, he supported including what he described as more transparent language informing voters of the potential cost and the existence of a city auditor.

Longtime liberal political operative David Butts ridiculed the initiative as part of a scheme by state conservative groups to make Austin look bad. He theorized that the objective is for a consultant to propose a number of draconian budget cuts that Council won’t approve. Then, he said, conservative groups could use that as justification for pushing state legislation to undermine Austin city government, although Butts did not specify how.

“It’s a spear aimed at the city of Austin by a group of extreme conservatives,” said Butts. “They resent this city, they don’t like this city.”

Butts nevertheless advised Council to put the initiative on the ballot. “We’ll defeat it, either way,” he pledged.

While the group that financed the efficiency audit petition has ties to Republicans, the petition garnered support from some liberal activists, including a number of those involved in anti-CodeNEXT advocacy.

On Friday, attorney Bill Aleshire told the Austin American-Statesman that he plans to sue the city over the efficiency audit language. Meanwhile, attorney Fred Lewis, who previously took the city to court over the CodeNEXT petition, said that he is considering legal action about the wording of that initiative.

This story has been updated to include information on Troxclair’s attempts to hold a vote on adopting the efficiency audit without putting it on the ballot. Photo by John Flynn.

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