Chartering a Course
Godzilla vs. Mothra, money changes everything, and letting the sun shine in
By Mike Clark-Madison, Fri., Feb. 15, 2002
Looking for the secret to Austin's vaunted quality of life? Look no further than the City Charter, which begins, "We the citizens of Austin, in reverence to the dignity and the enrichment of all people, do ordain and establish this Charter to assure economic, environmental, and cultural prosperity throughout our community." (We skimmed the charter for references to Michael Dell, but must have missed them.)
Nice as that sounds, in reality the City Charter's 12 articles are like the tonsils of the Austin body politic: unnoticed until they become annoying or inflamed. Then the charter gets amended, usually in big chunks, as citizens, activists, and officials get tired of hearing "That conflicts with the charter," or "That part of the charter conflicts with state (or federal) law."
Now, you may have noticed, is one of those times. Between now and March 21, the City Council will be considering proposed charter amendments to be placed on the May 4 ballot. Some are new proposals, some very old; some come from City Hall, others from angry citizens. Many will not make the cut. Some have already not made the cut at the council-appointed Charter Revision Committee, but that's not to say the council won't entertain them anyway.
The last time we amended the charter was in 1997, when voters approved the city's current campaign-finance regulations; before that, in 1994, citizens voted on 22 charter amendments, including the term limits that were upheld last week in district court (see "Austin@Large," p.14). With any luck, in addition to three City Council races and as many as six school board races, voters will not have to slog through quite so long a charter ballot this time. But Austinites -- or at least those who vote -- have repeatedly demonstrated their electoral endurance.
Even though May 4 will be the third election in six weeks (after the March 12 primary and its inevitable April runoffs), turnout for the city polls may be high if voters get exercised over single-member districts. The Flying Dutchman of Austin politics will be back for its sixth trip to the ballot box.
The City Council planned to vote last week to put SMDs on the ballot, but various council members instead revealed they're still undecided, at least about the "10-plus" (10 districts, and eventually 12 districts, plus the mayor) system recommended by the last two incarnations of the Charter Revision Committee (For: Gus Garcia, Raul Alvarez, Will Wynn. Against: Danny Thomas. Not sure: Jackie Goodman, Daryl Slusher. Says she doesn't care one way or the other: Beverly Griffith). So there will be more discussion, perhaps of a two-tiered, at-large-plus-district system (like that in Houston), though why this would be better has not been aggressively argued.
Why does it matter what the council members think, since the voters will ultimately decide? Even though mainstream voices like the Chamber of Commerce have endorsed single-member districts, if the council is not behind the plan SMDs will be more likely to flop for the sixth time. In that case, the idea might finally be abandoned, at least until someone decides to sue Austin for violating the Voting Rights Act. The "gentlemen's agreement," wherein for three decades Anglo voters have decided which African-American and Hispanic candidates join the council, does not jibe with the federal guarantee that minority voters will and should be able to elect the candidates of their own choice.
In fact, most Austinites already aren't able to elect candidates of their own choice, because they don't run and the voters don't know the people who do. As the Charter Revision Committee concluded in its December report recommending a 10-plus SMD system, "the rapid increase in the city's population [makes] it less and less likely that a representative of all Austinites could know the concerns of the many communities in the city.
"There have been periods when as many as 5 to 6 Council members have been from one part of town," the CRC report continues. "For the sake of a token process for minority representation, we have ignored appropriate geographic representation for many parts of the city." (Perhaps making this worse, the neighborhoods where turnout is highest are not the ones where council members live. No member of the current council lives west of MoPac or in north-central Austin.)
The last five times SMDs lost (most recently in 1994), by progressively narrower margins, the debate was mostly about ethnic representation. But now that census data makes it clear that we probably won't be able to draw a majority African-American district, and now that we finally have two Hispanics on the council, ardor for SMDs among minority leaders (like Thomas) has begun to cool. But minority votes don't decide citywide elections, which is part of the issue.
Rather, an SMD vote will pit Central Austin's Green Godzilla, loath to see its dominance of the council threatened even if SMDs are the right thing to do, against West-of-MoPac Mothra, skeptical of increasing the size of the council even if it means gaining representation thereupon. If the two sides cancel each other out, it may in fact be minority voters -- along with the Bubbas and Perot voters in North and South Austin -- who decide the future.
Even backers of the most recent charter amendment -- campaign-finance reform, with its $100 limit on contributions to candidates, sponsored by the Austinites for a Little Less Corruption -- acknowledge it didn't work. Elections since have been dominated by incumbents, the personally wealthy, and mediagenic eccentrics, sometimes all in the same person. So, many of the same reformers have successfully petitioned for the Austin Fair Elections Act, a public-financing system, to be put to the voters on May 4.
Austin Fair Elections Act
If AFEA backers had not diligently collected their 20,000 signatures, this City Council would not vote to put this deal on the ballot. Leaving aside the protection the ALLC reform -- Article III, Section 8 of the charter -- gives to incumbents with name ID, the AFEA will cost real money. Backers estimate that when the complex system is fully up and running in 2006, the city could spend as much as $1.3 million financing candidates for mayor and three council seats. (Then again, single-member districts could make the AFEA, and campaigns in general, much cheaper.) And unlike Austin's current, very limited public financing system, this money is not offset by a dedicated revenue source.
Now, the City Council spends more than $1.3 million every week on items that may be less important than free and fair elections. But at a time when Austin needs to borrow against future tax receipts to pay current operating expenses, the AFEA's cost may doom it at the ballot box. Yet when the Charter Revision Committee was asked by Slusher to consider potentially cheaper alternatives, it declined to do so. (Lively debate ensued as to whether either AFEA or ALLC should be enshrined in the charter, rather than simply as an ordinance. But the council need only wait two years before it can tinker with, or even dispense with, any ordinance adopted by voter initiative, and reform backers don't trust the council.)
A side question here is whether the ALLC system is so bad as to merit its repeal, whether or not AFEA passes. The city's Ethics Review Commission, which oversees candidate compliance with ALLC, told the Charter Review Committee that Article III, Section 8 was more-or-less unenforceable and incompatible with the city's other campaign rules. However, while the CRC's other recommendations to the city council have been unanimous, it only advanced ALLC repeal on a 3-2 vote. If ALLC goes and AFEA does not replace it, we'll be back where we were in the 1997 elections, when Kirk Watson and Ronney Reynolds between them spent more than $1.5 million on the mayor's race.
In the same week that Iris Jones, the former city attorney (whose department drew up 21 of those 22 charter amendments from 1994), begins her new stint as Austin's first-ever police monitor, the City Council will consider changing the rules of the game.
Jones was hired by outgoing City Manager Jesus Garza, who also appointed the nine members of the Citizen Review Panel who will work with Jones to provide oversight, such as it is, of the Austin Police Dept.
When the council-appointed Police Oversight Focus Group made its recommendations for a civilian review process of alleged APD misconduct, it specifically called for both the police monitor and the review board to be appointed by the City Council. However, when the POFG proposal went to the Austin Police Association as part of the "meet and confer" negotiations on the new police contract, the council's role got left on the cutting-room floor -- because, city staff declared, it would conflict with the city charter for the council to usurp the manager's authority over personnel. Under the charter, the only people hired by the city council are the city manager, clerk, and auditor.
Now, according to the legislation that allows meet-and-confer for Austin cops in our otherwise anti-union state, the terms of the contract supersede the city charter. And nothing in the charter should prevent the council from appointing the citizen panel, just as it now appoints the Civil Service Commission that hears appeals from cops who've been fired or punished for misconduct. Be that as it may, when the council held its nose and approved the meet-and-confer agreement, Jackie Goodman specifically asked for a charter amendment to allow council to hire the monitor (and appoint the panel).
Glad to oblige, the two most vocal advocates of police oversight, Scott Henson and Ann del Llano of the Central Texas ACLU Police Accountability Project, submitted draft language which the Charter Revision Committee has duly recommended to the council. The ACLU also wants a charter amendment which would open records in officers' personnel files to the public, as proposed by the Henson-led Sunshine Project on Police Accountability two years ago -- a measure for which petitioners collected thousands of signatures.
The meet-and-confer agreement does allow for negotiations to be reopened in the event of a substantial change to officers' rights and working conditions, but any attempt to replace Iris Jones immediately with a council appointee would likely be met with litigation from the APA. More likely is a provision that would take effect only after the current meet-and-confer expires next year.
While momentum for council control of police oversight is too strong to ignore, the City Council does not really want to hire the city attorney, a newly created consumer advocate, or the general manager of Austin Energy, as much as they may like these worthies to be more accountable. Proposals for these charter amendments all got shelved by the CRC, after Gus Garcia expressed his dim view of proposals that would further muddy up Austin's council-manager government. (The committee also let pass a proposal from the Electric Utility Commission to form an independent governing board appointed by council that would itself hire AE's manager.)
Other Bright Ideas --
Even as it moved to slightly trim the city manager's power, the committee recommended an amendment that should, if nothing else, shorten council agendas -- allowing the manager to approve expenditures of up to $100,000, or up to $100,000 a year on a multiyear contract, without council approval. Right now, the limit is $32,000. City Clerk Shirley Brown submitted this and other "clarifications" as potential charter amendments, but the CRC was unwilling to take staff's word that the others represented minor issues that needed no further study, and they were withdrawn.
There's a chance for several other election reforms. One is repealing term limits, which the Charter Revision Committee is slated to recommend, though this council may not be brave enough to put it on the ballot, especially after term limits were upheld in court. The CRC is also recommending that the number of signatures required for citizens to put an ordinance on the ballot be lowered from 10% of registered voters to the same 5% figure for busting term limits or amending the charter itself. And then there's instant-runoff voting (IRV), wherein voters would rank-order their first, second, and subsequent choices among council candidates, and these rankings would be used to calculate winners on election night, thus avoiding runoffs.
The Texas secretary of state's office issued an opinion last summer that IRV would be illegal, which effectively shut down a petition drive supporting it. Proponents went to court last week to seek a new opinion; given that three council members supported IRV last year, if its legality is established before March 21, it could be on the May ballot.
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