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HomeMy WebLinkAboutLegal Opinion - Charter Amendment Review 7/15/1991.IAMLIN A, ORIMON POO MaIIAINLANP PAUL Y, WIEmUSKIE PAUL T. FRANCIS PAUL TOMMR. ORIM013 & MGF'ARI-AND A PRoPlAWIUNAL 0t)It11k4I1A1 It 1N ATTURNEYK A-r LAW roar) WKET AMRMA P. 13, HOA %W360 A14LINOTON, TEXAS 76094^01711155ti July is, 1991 Mr, Jimmy C. Payton, Chairman Euless Charter Review Committee c/o Payton -Wright Ford Subaru 440 West Highway 114 Grapevine, Texas 76051 Mr. Neal Adams, Vice Chairman Euless Charter Review Committee 201 Trallwood Drive Euless, Texas 76039 RE: Euless Charter Revision Dear Mr. Chairman and Mr. Vice Chairman: J.TEM NO, 1 - PrgpeEty Owne1'9jia: uiFw JACTUD 11'J, (1.11.1) 461 11-MAJ TELk`L"MP11i RI (01111 All, 9l110 During the charter review process, we advised the Charter Review Commission that the charter provision requiring a candidate for public office to be a property owner was unconstitutional, and therefore unenforceable, based on judicial interpretation. The Charter Review Commission accordingly recommended that that charter provision be removed, and a ballot proposition conforming that article of the Charter to state and federal law was proposed. Some members of the City Council have expressed concern over another section of the Charter involving the same issue. Article X, Section 1, requires that a member of the Planning and Zoning Commission be a property owner. Article 1, Section 7, requires that persons signing annexation or de -annexation petitions be property owners. Although we find no current judicial interpretations expressly holding unconstitutional such charter provisions, it is our belief that If they were ever challenged, such provisions would be struck down on the same basis as the striking dowry of the charter provision concerning candidates for public office. In essence, failure to own property is not a legitimate qualification to the exercise of one's right to participate in the democratic process, In our opinion, if these provisions remain in the Charter, they will simply be unenforceable. Although the above two provisions have not yet been voided by judicial interpretation, they could be changed through a ballot proposition conforming those articles to state or federal law on the basis that such change is required through a logical extension of existing court precedent. Mr. Jimmy C. Payton, Chairman Mr. Neal Adams► Vice Chairman July 12, 1991 Page 2 If the Council wishes to remove the requirement of property ownership from Article 1, Section 7, pertaining to annexation and de -annexation petitions, it may be accomplished without the addition of another ballot proposition because Article. 1 is already the subject of a ballot proposition to bring it into conformance with state or federal law. They need merely amend the section to remove the words "property tax paying" from the second line of the first sentence. If the Council wishes to remove the requirement of property ownership from Article X, Section 1, pertaining to the Planning and Zoning Commission, it will be necessary to add another ballot proposition► bringing Article X into conformance with state and federal law. To remove the requirement of property ownership from Article X, Section I, pertaining to the Planning and Zoning Commission, it is recommended that the words "who own real property within said city" be removed from the first sentence of said section. In order to implement this change, it is recommended that the following ballot proposition be adopted: Shall Article X of the City of Euless Charter be amended to conform the provisions thereof to state and federal law. Answer "yes" or "no", It has come to our attention that two changes which have been recommended by the Charter Review Commission will require ballot propositions not already proposed because those changes consist of policy decisions which are not required by state or federal law, The first change concerns Article 111, Section 3. The statement that candidates for the City Council are required to sign states that said candidate is a "registered" voter of the City of Euless. The existing language requires that they state merely that they are "qualified," voters, State law allows cities to require candidates to be registered voters, but does not require the City to require candidates to be registered voters. Therefore, to implement this change, the following ballot proposition will be necessary: Shall Article 111, Section 3 of the City of Euless Charter be amended to require that candidates for election to the office of mayor or city council be registered voters► Answer "yes" or "no", The second provision concerns Article X, Section 2, The change endorsed by the Charter Review Commission will grant the City Counctl the authority to delegate to the Planning and Zoning Commission, by ordinance, final authority over platting or subdividing land. Again, this is a change permitted by state law, but not required by state law. Therefore, to implement said change, the following ballot proposition will be necessary: Mr, Jimmy C, Dayton, Chairman Mr. Neal Adams, Vice Chairman July 12,1991 Page 3 Shall Article X, Section 2 of the City of Euless Charter be amended to empower the City Council to delegate final authority over platting; or subdividing land to the Planning and Zoning Commission by ordinance, Answer "yes" or "no", Various Council members have also expressed a desire to amend the Charter to change the name of the Parks and Recreation Board, specified in Article X111, to "Parks and Leisure Services Board". To accomplish this change in the Charter, the following ballot proposition will be necessary: Shall Article X111 of the Euless City Charter be amended to change the name of the Parks and Recreation Hoard to the barks and Leisure Services Board, Answer "yes" or "no". Mr. Chairman, we recommend that you pall by telephone the members of the commission to discuss these suggested changes and make your recommendations to the Council as you see fit. Very truly yours, Paul Tomme'' PT/cl/ 1 cc: Mayor Harold Samuels and Members of Euless City Council CHARTER REVIEW COMMITTEE SPECIAL MEETING May 30, 1991 Chairman Payton called the meeting to order at 7:00 p.m. The following persons were present. Jimmy Payton, Chairman Willie Mae McCormick- Marland Ernest - Glenn Walker Bob Pippin Paul Tomme, Attorney Susan Crim, City Secretary Neal Adams, Vice Chairman Charlie Miller, Bill Byers Dwayne Wilcox - Bonnie O'Brien and Bill Pasteur were not present. Bill Byers moved to approve the minutes of the May 9, 1991, Charter Review Committee meeting. The motion was seconded by Glenn Walker and carried by unanimous vote. Chairman Payton explained the changes being proposed regarding the reconstitution of the City Council in a single ballot proposition. Neal Adams moved to accept the language of the attorney's May 28 letter for Article II, Section 1 to read as follows: "The governing and lawmaking body of the City of Euless shall consist of a mayor and six (6) council members, and said body shall be known as the 'City Council of the City of Euless'. The members of the City Council of the City of Euless shall be the only elective officers of the city and shall be elected from the city at large in the manner provided in Article III. The Mayor and members of the council shall draw no compensation as such for their duties, but shall be reimbursed for any lawful expenditures made in behalf of the city or expenses incurred in the performance of their official duties, when approved by the council. Each council member shall occupy a specific place. The office of mayor and council places two (2) and four (4) shall be filled by regular city election in 1993 and thereafter for terms of three (3) years or until their successors are duly elected and qualified. Council places _ and shall be filled by regular city election in 1992 and thereafter for terms of three (3) years, or until their successors are duly elected and qualified. Council places and _ shall be filled by regular city election in 1992 for terms of two (2) years, or until their successors are duly elected and qualified, and shall be filled by regular city election in 1994 and thereafter for terms of three (3) years, or until their successors are duly elected and qualified." CHARTER REVIEW COMMITTEE MAY 30. 1991 PAGE 2 Mr. Adams' motion further approved the ballot proposition that would implement the charter change to read as follows: Shall Article II of the City of Euless Charter be amended to reconstitute the city council to provide that it shall consist of six (6) council members and the mayor, that council place six (6) shall be filled by regular city election in 1992, that the mayor shall be a voting member of the council in all matters, that five (5) members of the council, or four (4) members thereof and the mayor, shall constitute a quorum, that the affirmative votes of at least four (4) members of that quorum shall be needed to adopt any ordinance or resolution, that the terms of office of the mayor and council places two (2) and four (4) shall be three (3) years to be commenced by the regular city election in 1993, that the terms of office of council places _ and shall be three (3) years to be commenced by the regular city election in 1992, and that the terms of office of council places and shall be three (3) years to be commenced by the regular city election in 1994. Answer "yes" or "no". The motion was seconded by Glenn Walker and carried by unanimous vote. The committee then discussed the possibility of proposing a ballot proposition that would require a person to resign his position on the Council if he filed for the office of Mayor if the above described ballot proposition fails. It was the consensus of the Committee that this would not be addressed at this time. Citv's Investment Policv Chairman Payton then directed the Committee's attention to the attorney's letter dated May 24 regarding the City's investment policy and the removal of council members for official misconduct or incompetency found in Articles VII and VIII of the Charter. Bob Pippin moved to accept the language of the City Attorney's letter dated May 24 for a ballot proposition to amend the City's investment policy to read as follows: Shall Article VII and Article VIII of the City of Euless Charter be amended to provide that the City of Euless may invest any city monies in accordance with council adopted policy and state law? Answer 11yes" or "no". The motion was seconded by Dwayne Wilcox and carried by unanimous vote. Removal of Council Members for Official Misconduct or Inconmtencv Bill Byers moved to accept the language of the attorneys letter dated May 24 by adding a new Section 5 to Article XII of the Charter to read as follows: CHARTER REVIEW COMMITTEE MAY 30. 1991 PAGE 3 Sec. 5 Removal of Mayor or Council Member for Official Misconduct or Incompetency A mayor or council member may, upon notice and hearing, with opportunity to respond, be removed from office by the unanimous vote of remaining council members for official misconduct or incompetency. A mayor or council member removed for official misconduct or incompetency shall not be eligible for re-election to the same office for two years after the date of removal. Mr. Byers motion stated further that the last 7 words of Section 4 ( and may forthwith be removed from office.) be deleted from the Charter and that present Sections 5 through 19 be renumbered as Sections 6 through 20. And finally the motion approved the following ballot propositions to employ the recommended changes Shall Article XII of the City of Euless Charter be amended to provide that a mayor or council member may, upon notice and hearing, with opportunity to respond, be removed from office by the unanimous vote of remaining council members for official misconduct or incompetency. Answer "yes" or "no". Shall Article II of the City of Euless Charter be amended to provide that a mayor or council member removed from office for official misconduct or incompetency shall not be eligible for re-election to the same office for two years after the date of removal. Answer 11yes" or "no". The motion was seconded by Glenn Walker and carried by unanimous vote. Final Approval of Recommended Changes Chairman Payton stated that 17 ballot propositions are now ready to be presented to the City Council for consideration in calling a Charter Election. Willie Mae McCormick moved to approve the final draft of the City Charter with all changes recommended for presentation to the City Council for their consideration as the final ballot propositions to be presented to the voters. The motion was seconded by Bob Pippin and carried by unanimous vote. Chairman Payton requested the ballot propositions be prepared for presentation to the Council in the following order. The propositions which concern specific sections be listed first in numerical order, then those that relate to entire articles with the gender neutral proposition being last. CHARTER REVIEW COMMITTEE MAY 30. 1991 PAGE 4 Chairman Payton requested the city Attorney draft a transmittal letter to be circulated to the committee members for their comments prior to it being delivered to the City Council Members. The Charter Review Committee members will be notified when the completed work is being presented to the City Council in order that they may be present if they so desire. The meeting was adjourned at 9:00 p.m. Chairman Payton thanked the members of the Charter Review Committee for their diligent attention to the work of reviewing the City Charter. The meeting was adjourned at 7:55 p.m. 5 J, PaytonChairman %% Susan Crim, city secretary