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HomeMy WebLinkAboutCharter Review Legal Commentary 12-12-1994LEGAL COMMENTARY ON THE CITY OF EULESS CHARTER December 12, 1994 This Commentary on the City of Euless Charter is based on a review of its provisions in light of the constitution, statutes, and cases of the State of Texas and of the United States. The purpose is to bring the Charter into compliance with all applicable laws governing home rule municipalities and includes suggested language to effect such compliance. It is also the purpose of this Commentary to describe ways to amend various Charter provisions which the Commission decides, as a matter of policy, should be amended. ARTICLE II, Section 9 This section requires the City Council to hold at least two (2) regular meetings in each month, regardless of the need therefor. If the Commission believes that the City Council should have the flexibility to hold only one regular meeting per month when there is no need for a second meeting in said month, then the Commission can recommend that the first sentence of this section be amended to read as follows: The City Council shall hold at least one regular meeting in each month at a time to be fixed by it for such regular meetings, to be designated by ordinance or resolution, which ordinance or resolution shall be published at least one time in the official newspaper of the City. Since the second sentence of this Section allows the City to hold as many additional meetings during the month as may be necessary for the transaction of the business of the City and its citizens, such an amendment would not infringe upon the ability of the City Council to perform their official duties. ARTICLE III. Section 3 This section sets forth the language to be contained in the application which a candidate for election to the office of Mayor or to the City Council must file with the City Secretary. The second paragraph of the required language requires the applicant to state that said applicant has been a resident of the City of Euless for at least (LP year, This language appears to require the applicant to have been a resident of the City of Euless for at least one year on the date of application, which would be inconsistent with ARTICLE II, Section 2 of the Charter requiring only that the candidate have been a-rissiaent of the City 17517- at least one year prior to the date of election. In order to make these two_provisions consistent, it is recommended that the first sentence or tfiie second paragraph`of-t'he-language quoted in ARTICLE III, Section 3 of the CliaCteL be amended to read as follows: I am a registered voter of the City of Euless, citizen of the United States, and will have been a resident of the City of Euless for at least one year on the date of said election. LEGAL COMMENTARY ON THE CITY OF EULESS CHARTER - Page 1 ARTICLE IV. INITIATIVE. REFERENDUM AND RECALL There are no state or federal statutes restricting the ability of the City of Euless to revise its Charter with respect to the requirements for initiative, referendum and recall. In fact, no law requires the Charter to even contain provisions for initiative, referendum or recall. Most of the case law in this area involves situations where the charter requires a petition to state grounds for the election and the opponents of said election believe that petitioner has failed to state adequate grounds pursuant to the charter. In every case we have reviewed, the courts have concluded that the petitioner either stated adequate grounds or that the charter provision requiring grounds to be stated was so ambiguous as to be unenforceable. If a court is in doubt on such a question, the court will usually decide to permit the election. As a result, any Charter provision requiring a petition to state grounds for the election must be so specific as to be quantifiable. For instance, if a council member became ineligible to retain office during such council member's term of office, a petition setting forth said ineligibility would not be subject to reasonable dispute. However, a petition for recall of a council member on that basis would not be necessary because any one person could demand the removal of said council member without need of a recall election. ARTICLE IV, Section 7 of the Euless Charter requires the petition to contain a general statement of the grounds to which the Council member's removal is sought. There is nothing unconstitutional or illegal about this provision. However, it must be understood that the grounds stated by a given petitioner, such as alleged incompetency or mismanagement, need not be proven by the petitioner to be true in order to require a recall election if all the necessary signatures are contained in the petition. There are no statutes or cases regulating the degree to which the charter may impose a requirement as to the minimum number of signatures to be contained in a petition for initiative, referendum or recall. The charter may set forth a requirement based on a percentage of registered voters, or a requirement based on a percentage or those who voted in a given election, or an average thereof, or the charter may set forth a minimum number of signatures without regard to a percentage of either registered voters or actual voters. After this commission finally expresses its wishes in this regard, the city attorney will recommend appropriate language to enact those recommendations in the charter and in the ballot proposition itself. ARTICLE VII. Section 5 This provision requires the City Council to adopt a budget at least ten (10) days prior to the beginning of a given fiscal year by a favorable majority vote of all members of the Council. A problem could arise if a majority of Council members could not agree on a budget, because the City cannot spend money without a budget. It is recommended that the following language be added to this Section: If a budget is not adopted by the beginning of the fiscal year, the proposed budget of the City Manager shall be deemed to have been approved. LEGAL COMMENTARY ON THE CITY OF EULESS CHARTER — Page 2 ARTICLE XI, Section 3 This Section requires that the full text of all ordinances granting, amending, renewing or extending franchises for public utilities be published once each week for four (4) consecutive weeks in the official newspaper of the City of Euless, with the expense of such publication to be borne by the proponent of the franchise. Under State Law, Local Government Code § 52.013, the governing body of a home rule municipality may publish a caption of any ordinance that summarizes the purpose of the ordinance, regardless of the requirement in the municipality's charter that the text of the ordinance be published. This means that the City Council may require the full text of a utility franchise ordinance to be published, but is not required to do so even though the charter says it is required to do so. It is recommended that this Section be amended to read as follows: All ordinances granting, amending, renewing or extending franchises for public utilities shall be read at two separate regular meetings of the Council and shall not be finally be passed until thirty (30) days after the first reading; and no such ordinance shall take effect until thirty (30) days after its final passage; and pending such time, the full text of such ordinance, or its caption if permitted by the City Council, shall be pur iishionce each week for four (4) consecutive weeks in the official newspaper of the City of Euless and the expense of such publication shall be borne by the proponent of the franchise. Please note that this language preserves the option of the City Council to require that the full text of the ordinance be published. GRAMMATICAL ERRORS It is recommended that the last sentence of ARTICLE II, Section 1 be amended to read as follows: 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. It is recommended that the third sentence of the second paragraph of ARTICLE II, Section 11 be amended to read as follows: All Ordinances enacted by the Council shall be considered and the descriptive caption of such Ordinance read in open meeting of the Council at two regular Council meetings ... . LEGAL COMMENTARY ON THE CITY OF EULESS CHARTER — Page 3 It is recommended that ARTICLE II, Section 13 be amended to read as follows: All Ordinances of the City of Euless adopted prior to the adoption of this Charter and not inconsistent with the provisions of this Charter shall remain in full force and effect until altered, amended or repealed by the City Council. MLIB/647 LEGAL COMMENTARY ON THE CITY OF EULESS CHARTER — Page 4