The Kyle Report

The Kyle Report

Tuesday, August 22, 2017

Webster calls budget proposal “a landmark for the city”; Mitchell, Sellers explain beautification plan

Council member Shane Arabie made an excellent point after tonight’s City Council meeting adjourned. He measured the level of excellence of the city manager’s proposed budget by the number of people who came to the public hearing to talk about it. Two. Only two people spoke during tonight’s public meeting and one of them was incredibly misinformed about the contents of the budget (she erroneously thought the "Beautification Plan" was part of it) and the other admitted she didn’t have a clue about how to read the budget. The fact that the second person is an announced candidate for mayor should set off some alarms, but there you have it. Of course, that might not be as strange as a sitting council member being absolutely clueless about the funding sources of a projected spending item.

"In past budget public hearings, I have seen this room jammed with people who wanted to complain about the budget for one reason or another," Arabie said. "And tonight, there were just two. Only two. That’s amazing and illustrates just how good this budget is."

Mayor Todd Webster and council member Travis Mitchell, a candidate for mayor (but, I hasten to add, not the candidate I referred to in the first paragraph) both expressed their pleasure over the budget during the council’s discussion on whether to amend it at all. One of the ways I could easily measure the council’s affirmative reaction to the city’s proposed budget is that, for the first time since I’ve been in Kyle, not a single change to the budget was recommended during this second consideration of the document. Not only that, no amendments were offered at last week’s hearing either.

The current budget will be the fourth Webster has witnessed since becoming mayor and he went through other budget deliberations while serving on the council between 2003 and 2006. He said his frustrations with those earlier budgets stemmed from the fact "There were so many needs, so many things that we had to get done and we were always having to put off things. The revenues weren’t there. The economy hadn’t grown to a point where we could address very important infrastructure issues. To my recollection I don’t remember us doing anything that was comprehensive in terms of quality of life issues and things that people said that they wanted. Even three years ago, I felt we were still behind the curve.

"For the first time with this budget I feel like we’re ahead of the curve. We’ve addressed the infrastructure needs that really must happen. We’re addressing the water, the wastewater and the stormwater issues. We finally have a street maintenance program. We have so many infrastructure projects in the pipeline we had to add two positions just to inspect them all. To be able to do that and still be able to address a handful of the quality of life amenities and things that people have consistently been begging for over the last two decades and at the same time to offer a tax rate reduction I think is really extraordinary — something I never imagined could have happened during my time up here. I recognize this budget for what it is — a landmark budget for the city. It’s evidence to me that we’ve turned the corner."

Council member Daphne Tenorio mistakenly thought the $14,000 projected cost of relocating an electronic sign from City Square Park to the Public Works Building was an actual budget item, but Sellers corrected her and said it was just that — a projection of something that might happen, but, as it turns out, won’t.

The target of the one of the two speakers at tonight’s budget hearing was the city’s so-called Beautification Plan which Mitchell, "just as a point of clarification," pointed out was just a presentation, but also not part of the proposed budget for the upcoming fiscal year.

"The Beautification Plan, as originally approved by council a year ago, basically took certain items from the budget that were beautification related and put them in a plan just from a priority standpoint," City Manager Scott Sellers added. "We took items from that plan and helped prioritize some items in this budget and then went back and looked at other priority projects related to beautification and put them in the plan to help shape future budgets. So at this point it really is just picking and choosing.

"One of the big projects of the Beautification Plan, for example, is Center Street widening — sidewalks, etc.," he continued. "We’ve had that in our CIP for quite a while. That’s $5.5 million. Lehman, Burleson, Marketplace — each of those are technically considered beautification. Sidewalk additions, nice pedestrian-scaled lighting, etc. So it was really just helping the council and the staff establish priorities in the future. It really wasn’t intended to set any sort of budget at all.

"Over the last several years and probably even much longer than that the city has been somewhat criticized for spending too much money on the intangibles, the non-visual improvements, which were extremely important because they were infrastructure-related," Sellers said. "But the quality of life initiatives, the improvements to the parks, the visual improvements to walkability and visibility were not prioritized. What the Beautification Plan was intended to do — and I believe doing a good job of — is highlighting those items we actually are working on that fit into that quality of life category and that we will continue to work on over the years."

Mitchell called Sellers’s beautification presentation "a great plan" and objections to it "much ado about nothing."

"It was literally just putting some projects in front of us and giving us the opportunity to provide some feedback for the future on many projects we have regularly put off because they don’t rise to the level of spending city tax dollars on them at this time," Mitchell said. "But they still are good projects that we want to look at for the future and keep them on the list because if the time ever came when we could identify funding or where the funding made sense for us, we could move forward. So it was a great plan.

"It’s pretty incredible just how far we’ve come," Mitchell said. "We’ve had to do a lot of heavy lifting in the past. Just the fact that we’re even able to start to talk about a Beautification Plan and to start to look at some of these projects while simultaneously having a $10 million lighter budget than last year and a three-cent lighter tax rate on citizens after another 1-cent tax rate the previous year means we’re leading Hays County without question over those two years in taxes related to the citizens while still being able to finally look at projects like beautification.

"I couldn’t be happier, "Mitchell added, "I don’t know how we could do a better job at this point of presenting a budget that meets the needs of the community while simultaneously helping to provide tax relief. I think we often talk about those two items being in tension with each other. This is an incredible budget. It’s allowing us to do the impossible — provide both."

In other matters on the agenda last night:
  • As expected, Tenorio pulled consideration of the revised Ethics Ordinance off the consent agenda and then announced her appointee to the Ethics Commission, Teresa Tobias, has resigned from the commission. Tobias is a member of the Hays CISD school board and one of the changes in the ethics ordinance forbid elected officials from serving on the Ethics Commission, although the council agreed to exempt Tobias from this provision until her term expired. Webster said additional changes to the ordinance were made on the advice of the city attorney. One prohibited people from suing the city, which Webster deemed unconstitutional and thus was removed from the proposed ordinance. Webster also said the city attorney agreed that a separate attorney, independent of the city attorney’s position, would provide legal counsel to the commission. The council then voted 6-1, with, as also expected, Tenorio dissenting, to adopt the ordinance.
  • After revealing the council had, back in January, made a deal with the devil that permits garages on certain homes to project further than any other part of the front of a home (a concept Mitchell said he objected to then and voted against when offered as an amendment tonight) the council ultimately voted to adopt the so-called Design Guide as well.
  • In its last decision of the evening (other than deciding to adjourn, of course) the council voted to indefinitely suspend consideration of an agenda item that would have called for another council position to be included on the Nov. 7 election. The council reasoned consideration was unnecessary because no additional council places were vacated.

Monday, August 21, 2017

Three challenge Mitchell for mayor

A trio of candidates — two of them who could be called political perennials and the third a political neophyte — have filed to challenge city council member Travis Mitchell’s bid to become mayor of Kyle in the November elections. In addition, only two candidates filed to fill each of the three open city council seats meaning the chances are overwhelming those races will be decided without a runoff. And because of Mitchell’s depth of support, it is possible he could win election on Nov. 7 as well.

I said the chances are overwhelming the two-candidate races will be decided without a runoff only because, in the city’s most recent council general election, one two-candidate race ended in a tie vote. I know all about lightning not striking twice, but, when it comes to things like lightning, I’d rather not take too many risks.

Jaime Sanchez, a 50-year resident of Kyle and a former city council member who was unsuccessful in his last city council race in May 2015, losing in a runoff to Damon Fogley, waited until just before the deadline to file his application to run for mayor. Sanchez was elected in February 2010 to fill the unexpired District 5 council term of Lucy Johnson, who vacated the seat to run for mayor. He chose not to seek re-election when the term expired in 2012.

Bill Sinor, who has also unsuccessfully sought locally elective office previously, originally filed for the council seat currently held by Becky Selbera, who announced she would not seek re-election, but unexpectedly withdrew that application on Friday and decided to file for mayor instead. I am not absolutely certain of this, but it appears Sinor ran unsuccessfully for the District 3 seat in 2013, an election won by Chad Benninghoff, then again in a special election called the next year when Benninghoff resigned, an election won by current council member Shane Arabie.

Although all three of these individuals have run for political office before, I am fairly certain none of them are experienced in a November political campaign which produces a much different voter turnout than ones held earlier in the year.

The fourth mayoral candidate is school teacher Nicole Romero-Piche, who calls herself "a mom on a mission" with a website that displays a certain naivete about municipal financing. However, as I have done in the regular and runoff elections The Kyle Report has covered during the 34 months of its existence, I hope to sit down for recorded conversations with each of the candidates and reproduce the transcripts from those interviews on this blog so voters may get an unedited picture of each of the candidates from their own words.

One of the two candidates seeking the Place 1 seat being vacated by Mitchell is Dex Ellison, a bank manager and the chair of the city’s Planning & Zoning Commission, who captured 20 percent of the vote and finished third in a bid to be elected to the District 6 seat in an election ultimately won in a runoff by Daphne Tenorio. Only 4 percent of the registered voters bothered to cast ballots in that election; it is anticipated the turnout will be somewhat higher, at the very least, on Nov. 7. He, too, waited until the last day to file his application. The other candidate is Marco Pizana Jr., who lists his occupation as a Hays CISD CTE internship coordinator. To my knowledge, this is Pizana’s first run for a political office.

Tracy Scheel, a healthcare manager at REM Sleep Center, a member of the city’s Parks Board, and a regular attendee at city council meetings, and Robert Rizo, who lists his occupation as "construction," will oppose each other for the District 2 seat Selbera is vacating.

Plum Creek resident Tim McHutchion, who owns a storage facility in east Kyle, will face Hometown Kyle resident Alexander Villalobos, a Texas State University police officer, for the District 4 seat which became open when David Wilson announced he would not seek re-election.

Sunday, August 20, 2017

Council to consider potentially provocative agenda


As I see it, the Kyle City Council is divided between two conflicting camps with opposing agendas. The first camp wants to establish policies that would enable a staff to continue to expertly manage the day-to-day operations of the city as well as to create optimistic, innovative, creative, yet realistic targets for the city’s future. The second camp wants to throw a monkey wrench into the gears of that well-managed machine forcing progress to grind to a halt, to drag the city back to a somewhat corrupt and self-serving management style prevalent during its not-too-distant past. I purposely used the word "divided" and not "split," because "split" denotes there is roughly, if not exactly, an equal number of council members in each camp, which is obviously not the case. The overwhelming majority of the current Kyle City Council belongs to the first group. They may have conflicting ideas among themselves about the exact nature of the policies that will insure their objectives are met, but at least they agree on the objectives. I am not going to identify which council persons belong to which group. I’ll let the local population make their own judgments on that. I will say, however, Tuesday’s city council agenda will make that identification task as easy as counting from one to seven (the latter, of course, being the number of persons on the city council). And I have this sneaking suspicion, although absolutely no proof to support this suspicion, that the agenda was set up with exactly this in mind — for the public to easily identify who’s who.

The reason I say this is because the "consent agenda" has reappeared. For those who might not be familiar with the mechanisms of a legislative hearing, a "consent agenda" is a device designed to expedite the process — it’s a group of supposedly non-controversial, largely routine matters that can be acted on collectively, items where it is felt individual debate on their merits has either been exhausted or is not needed. It’s not unusual, for example, for the second reading of an ordinance to be on the consent agenda because all debate on its pros and cons should have taken place when the measure was considered on first reading — any further debate would simply be redundant and lead to demagoguery. A consent agenda has been absent from the last couple of Kyle City Council agendas because council members were pulling every item from the concent agenda — they were demanding that each item be considered individually anyway, so the concept of a consent agenda became irrelevant and its inclusion became unnecessary.

But the consent agenda is back. Why did it make a reappearance for this special called meeting? Whether this was the intention or not, I will tell you it will serve as a valuable tool for separating the pragmatists from the obstructionists, should the latter decide to run the risk of deliberating exposing themselves and their motivations. It’s quite possible they will decide not to risk public exposure. The wise thing to do would be to simply keep mum and continue to work deviously outside the view of all but their most fervent base of supporters. But I have found that for some reason it’s impossible for the obstructionists to shy away from the spotlight. The term "quiet demagogue" is an oxymoron. These people simply can’t help themselves. A perfect example of this is Donald Trump’s tweets. It’s the story of the spider and frog all over again — it’s their nature.

And because it’s their nature, that’s why I think (and I not usually a conspiracy theorist) this agenda was constructed to expose them, to possibly call them out for who and what they are and why they are trying to achieve, or, to be more accurate, what they are trying to prevent the city from achieving.

To put it quite simply, those who have joined Darth Vader on The Dark Side (i.e., the "second camp" as described above) can be spotted because, unwisely, they will deliberately expose themselves by pulling, at least, items 4 and 5 from the consent agenda, two items that were discussed and debated at length at last week’s marathon council meeting, were passed, each with only one dissenting vote. Not only is it unlikely that either will attract more dissenting votes this time around; it is far more likely that each will receive one more affirmative vote. So what would be the point of pulling them off the consent agenda? There would be no point, except to give a demagogue an opportunity to inflame a shrinking political base, shrinking in terms of percentage if not actual numbers.

The goal of Item 4 is to improve the quality of life in Kyle, particularly in future residential neighborhoods, to advertise to the world Kyle is synonymous with quality, perhaps a little higher quality than other communities might be willing to demand. The goal of Item 5 is to strengthen the city’s ethics code, to not only remove loopholes that allow city officials, either elected or staff, to escape punishment for ethical violations through technicalities, but also to eliminate politics completely from ethical considerations. Or, to put even more directly, Kyle wants to show the world it is a city governed and run by individuals above reproach because its judgmental and evaluation processes are above reproach.

Both of these ideas, which are commendable, are somewhat new to Kyle. While the city did have housing standards, they were so strict they prohibited a lot of diversity in housing stock and they created residential areas devoid of many of the amenities that made them actual communities. Although one can lament the fact, no one can deny that the concept of creating "neighborhoods" has been abandoned in favor of the concept of suburban sprawl. But that doesn’t mean a city has no choice but to create what will become, in 20 years or so, a series of suburban residential ghettos and Kyle has decided to take the steps now to try and prevent just such an eventuality. And one would think it would be a wise move to tell the outside world it is adopting an ethics code to proves to one and all that decisions made by Kyle’s government will be based on merit, not on politics.

But the simple fact that these are changes is proof that this is not the way the government in Kyle has always operated. Kyle is now adopting a philosophy of a government that serves the best interests of all the people, just not a handful of long-time residents. And any council member who pulls these two items from the agenda will be identifying themselves as someone who wants to return to that latter ideal because they are among those long-time residents who benefitted from those non-inclusive policies.

There’s also one other item I found interesting on the agenda, one that might cause some consternation among the more politically devious of our citizenry. And that’s Item 10, the first reading of a "just-in-case" ordinance authorizing an election to be held Nov. 7 for any council seat that might be vacated between the time this story is published and the 5 p.m. Monday filing deadline. This is designed to prevent a council member from waiting until the very last minute to file to run, for instance, for mayor, with the belief that should he or she not be successful in that endeavor, the candidate could still have time seek to hold onto his or her council seat in a future election. I brought up this subject Saturday during a lunch I had (at the Texas Pie Company, of course) with someone regarded as a legendary political strategist in Central Texas who told me this is a common strategy used by most cities to prevent this sort of backhanded political tomfoolery.

Tuesday’s agenda also contains yet another opportunity for citizens to voice their opinions during public hearings on the city’s proposed budget for the fiscal year that begins Oct. 1 as well as a proposal to lower the tax rate by 3.3 cents, which is likely to make the city of Kyle the only taxing identity in all of Hays County proposing a reduction in its tax rate. Similar public hearings were held at last Tuesday’s council meeting and I bemoaned the fact that no one took the city up on its offer. A "concerned citizen" pointed out, however, that, in truth, .002 percent of the city’s population did appear. So I stand corrected. At the same time I would argue that if we made an agreement that for every dollar you gave me, I would give you .002 percent of that dollar in return, you would quickly complain that, in reality, I was giving you nothing back. With that, I rest my case.

This is probably also as good an opportunity to punch holes in some myths I’ve heard floating around the city recently concerning the proposed budget. Myth #1 concerns a $100 million debt. Not only is this not true (the city’s current debt is $85.6 million), that debt has been managed so expertly that the percentage of the city’s tax rate used to pay off the debt has been reduced from 58.33 percent in this budget to 52.97 percent in the proposed one. Second, the size of a debt is secondary to the ability to pay off that debt. I, for example, would find myself in serious trouble if I was $1 million in debt. Mark Zuckerberg, or Warren Buffett or Bill Gates would not find that situation much of a problem.

And, yes, additional debt is proposed (although not yet even authorized. let alone issued) to pay for the expansion of the wastewater treatment plant as well as an economic development project. But General Fund money (i.e., money provided by the property tax rate) will only be used to repay that debt in the unlikely events that Utility Funds are insufficient to completely cover the cost of the former and Hotel Occupancy Taxes are insufficient to completely cover the costs of the latter.

Second is the myth that the city manager’s proposed municipal beautification plan included $14,000 to relocate the electronic sign at City Square Park. The sign’s removal has absolutely nothing to do with the city manager’s beautification proposal. In fact, the sign’s removal was not even proposed by the city manager. And finally, anyone who attended last week’s city council meeting or watched it from a remote location knows it was recognized by all involved that, if needed, the sign could be successfully relocated for a fraction of that $14,000 figure.

Other items on the council’s agenda for this coming Tuesday include ones that would allow the city to have some say as to where wireless carriers can place antennas, approving a utility franchise agreement with Pedernales Electric Cooperative that’s far more favorable to the city than the existing contract (another example of that city staff management expertise I referred to earlier), a housekeeping provision to rezone a sliver of property along Old Highway 81 from residential to retail services, and the authorization of a 45-day extension of an agreement involving the use of reclaimed water to irrigate of the Plum Creek golf course to ensure that the agreement will be transferable with the sale of the course.

Thursday, August 17, 2017

Espinoza labeled “an embarrassment to his profession”

The former acting Kyle police chief who conducted his own investigation into the performance of former police sergeant Jesse Espinoza testified today he ordered Espinoza’s indefinite suspension because he viewed Espinoza as insubordinate, unethical and "an embarrassment to his profession."

That testimony came from Ellis County Sheriff Charles "Chuck" Edge during the fourth and final day before an extended recess of the civil service arbitration Espinoza sought in his attempt to be re-instated by the Kyle Police Department. The hearing is scheduled to resume "some time in October."

"Sergeant Espinoza committed acts in both an official and a private capacity which tended to bring reproach, disgrace and embarrassment to his profession and the police department," Edge testified.

Edge said he was "happily retired" when the Kyle City Council authorized his appointment as a temporary police chief to oversee an investigation of Espinoza, who was charged with wilfully disobeying orders by refusing to produce documents demanded by the city and by ignoring instructions from the city manager to report any and all contacts with an individual who had filed a federal lawsuit against the city and Police Chief Jeff Barnett. Edge appeared to be the final witness the city plans to call in the hearing. Because his testimony extended so late into the afternoon, hearing examiner Dr. Paula Ann Hughes said Espinoza’s attorneys could delay their cross examination of Edge until the next session and then recessed the hearing until "a future date." When asked a few moments later when that future date might be announced, she said, because of previous commitments made by everyone involved in the hearing that extend through September, it would most likely be "some time in October."

Edge said his investigation, which consisted of reviewing the investigation of a private investigator, as well as a series of interviews he personally conducted with Espinoza and others involved in the matter, proved to him the following:
  • Espinoza never complied with an order issued by assistant city manager James Earp to turn over documents, including a check for $5,000 from someone who had filed a lawsuit against the city, money the city characterized as a "gift," but Espinoza called a "loan," and that failure to comply with this order constituted an act of insubordination.
  • Whether the $5.000 was a gift or a loan was irrelevant; the acceptance of the check in whatever guise, especially from someone suing the city, constituted a violation of Kyle’s ethics code and police department policy.
  • That Espinoza acted in conjunction with and at the direction of Dr. Glen Hurlston, the Louisiana anesthesiologist who filed the federal lawsuit, in a concerted effort to get Barnett dismissed from his position as Kyle police chief and that such actions by a subordinate constituted insubordination.
  • That while Hurlston claimed the $5,000 was a gift to Espinoza to help defray the costs of his child’s medical expenses, receipts uncovered during the investigation revealed the money was never used to pay medical costs.
  • Espinoza was insubordinate during his interviews with Edge by refusing to directly answer questions Edge claimed required simple "yes" or "no" answers and that when asked to defend his own actions would instead "go on a rant" about the bad actions of others, usually Chief Barnett. "It was never his fault, always someone else’s," Edge said of Espinoza’s answers to questions, which he described as "arrogant and disrespectful responses."
  • Espinoza willfully violated standard police procedures in the manner in which he entered the home of then city council member (now mayor) Todd Webster and although that offense occurred outside the 180-day window for prosecuting civil service offenses, Espinoza lied about the incident during his interviews with Edge. Espinoza told Edge he was responding to a call for service, although Edge’s investigation could uncover no record of such a call in the police department’s records. Edge’s investigation also revealed Espinoza’s shift on that particular day had ended more than two hours before the incident took place and, thus, Espinoza was off-duty when it took place.
  • That while Espinoza denied spreading any "rumors" about an alleged extra-marital affair involving Webster and former council member Samantha Bellows, he did admit he conveyed those allegations to other people without being able to produce any evidence to substantiate the allegations and that just by conveying allegations he couldn’t prove, whether or not they were called "rumors," was a dereliction of duty and displayed "a lack of good moral character."

"Sergeant Espinoza conspired with and cooperated with Glen Hurlston in an attempt to get the City of Kyle to fire Chief Barnett," Edge testified, "Those acts of misconduct are evidence that Sergeant Espinoza, while on and off duty, failed to follow the ordinary and reasonable rules of good conduct and behavior."

Quirky? Actually, we kinda like quirky, especially when it comes to signs

(Part 2 of a report chronicling Tuesday’s city council meeting. Part 1 can be found here.)

The City Council voted 5-1 Tuesday to approve the first reading of an ordinance that, Community Development Howard J. Koontz said, would allow the council to approve signs that would not ordinarily meet the strict letter of the city’s current sign ordinance.

"We don’t want to exempt ourselves from our own good judgment," Koontz said. "But if there is some type of sign that the city could find mutual benefit from, where it could provide economic development, incentive for some business for some kind of wayfinding or some other attention-getting signage that could help with their efforts to get destination at activity centers — if somebody wished to come forward they could make this application outside the requirements of needing a variance from the Sign Control Board. Instead you could approve this through the process enumerated in the text for a special exemption."

Koontz originally designed the ordinance so that only commercial businesses not located on the interstate would be eligible, but council member Travis Mitchell convinced a majority of his colleagues that the ordinance should apply to all areas of the city.

"I am in favor of unique signs," Mitchell said. "Great giant pies, great giant rail towers, great giant whatever — anything the brings uniqueness to the area, I’m in favor of at least taking a look at it. My concern is how we decide what is and what is not a regional draw."

The proposed first reading was approved on a 5-1 vote with council member Daphne Tenorio casting the lone dissenting vote. She said she was concerned that the ordinance would allow the influx of gaudy flashing signs all over the city. Somewhat inconsistent with that stand however, was her unwavering opposition to removing just such a gaudy flashing sign from the historic City Square Park and she turned out to be the only council member to  vote against relocating that sign to a more appropriate location.

Tenorio was also the only council member to vote against ethics reform, improving the overall quality of life in Kyle’s residential districts, taking steps to improve the quality of board and commission members and, perhaps even the most more shocking of all, attempts to beautify the city.

Tenorio’s opposition to strengthening the city’s ethics code came as really no surprise since her ability to use a loophole in the code that was amended recently allowed her to escape public censure on an alleged ethics violation. The changes to the code, among other things, eliminated that loophole. It also changed a provision that allowed elected officials to be named to the ethics commission, a change that was originally made at Tenorio’s request and allowed her to appoint a colleague of her husband’s on the school board to the ethics commission. However, although the reform measure passed 5-1, all the council members agreed to grandfather Tenorio’s ethics board political appointee until she completes her current term in November 2018, unless she chooses to vacate her seat for some reason before that date.

Tenorio’s opposition to the other measures were bewildering, however, since such opposition would not appear to be a successful way to construct a winning political resume. In fact, it would seem, opposing (a) improving the city’s quality of life, (b) raising the standards for applicants to city boards and commissions, and [c] making the city more visually appealing would provide a potential political opponent more than enough ammunition to defeat her in a political campaign. But, admittedly, I retired from managing and directing political campaign communication programs more than 15 years ago and the results of recent elections would argue the entire U.S. political world has been turned completely upside down between then and now.

Tenorio willfully violated Roberts Rules or Order by going on a rant after she opposed the quality of life issue before the council. Reading from prepared remarks during a time when Roberts Rules expressly forbid such remarks, she basically argued "If developers want to come to Kyle and build crappy houses, we should not stand in their way and try to prevent them from building crappy houses." Regardless of the state of the current political universe, I simply can’t view that as a convincing argument. Nor can I envision that many voters actually embracing her stance that anyone who applies for a board or commission vacancy should be allowed to serve regardless of how unqualified that applicant may be. Not only that, earlier in the evening she criticized the city manager’s efforts to make the city more visually attractive. Fortunately for the city and its residents, she was the only council member who staked out that same territory on any of those issues.

In other actions last night:
  • In a humiliating display of how little concern Kyle residents have about the most important decisions a city council can make, no one came to speak during a pair of public hearings, one on the city manager’s proposed $75.5 million budget for the upcoming fiscal year that begins Oct. 1 and the other designed to solicit citizen input on the proposed property tax rate. I find it strange that residents have no qualms taking to social media and other outlets to complain about the amount of local taxes they must pay but when given the opportunity to actually confront those who make the final decisions on those issues, those same residents are nowhere to be found.
  • In an emergency meeting immediately preceding the regularly scheduled gathering, the council unanimously approved spending up to $50,000 to replace a culvert on newly reconstructed Bunton Creek Road, but not before council member Shane Arabie severely chastised a process that allowed this deficiency to escape notice when engineering studies were conducted on that part of the roadway before construction work commenced on that bond project. As it stands now, much of the just completed reconstruction on the road will have to be ripped out and then rebuilt after the culvert has been replaced.
  • The council was briefed on the latest design of the proposed Veterans Memorial which would consist of a garden, an American flag display and obelisk and what appeared to be a smaller version of the wall at Washington, D.C.’s, Vietnam War memorial.
  • Approved a stronger franchise agreement with Pedernales Electric Cooperative that will produce almost $600,000 in additional revenue to the city in just the next fiscal year alone.
  • Unanimously approved a consent agreement what will pave the way for a planned major commercial development project on either side of FM 1626 from Kohler’s crossing north to almost the city’s limits, Such a commercial development seems to make sense since the opening of the toll road that’s currently under construction linking the southern edge of Austin’s Mopac with FM 1626 near the Hays-Travis County border will guarantee that FM 1626 will soon rival I35 as the major north-south motor way between Kyle and the state capital.
  • The council unanimously passed the first reading of an ordinance that would provide significant financial relief for residents needing sidewalk repairs as well as Mitchell’s slightly revamped economic development plan designed to attract businesses, predominantly, but not exclusively, small businesses, to locate or even expand their physical plants in Kyle by offering them rebates on the property tax valuations increases directly tied to those efforts.
  • City Manager Scott Sellers announced the groundbreaking for an Alsco facility in Kyle at Kyle Crossing and I-35 will take place at 2p.m. Wednesday, Aug. 30. The 128-year-old firm provides linen and uniform services and products to customers that include restaurants, hospitals and healthcare clinics, automotive, industrial, and manufacturing facilities. Tenorio tried to diminish the significance of the economic development project that could bring as many as 250 jobs to the city by asserting most of the jobs were, in her words, "menial." However, Diana Torres, the city’s economic development director, countered that the average salary at Alsco is higher than the overall average salary paid to other workers employed in Kyle.
  • Library director Paul Phelan announced the library will be a drop-off location for a few days next month for food donations, mostly canned goods, for the Hays County Food Bank.

Wednesday, August 16, 2017

Parties in Espinoza arbitration spar over “insubordination”

Attorneys representing both sides in the arbitration hearing of fired Kyle police sergeant Jesse Espinoza spent much of the day today wrangling over just what constitutes insubordination, the reason given for Espinoza’s "indefinite suspension."

The only facts mutually agreed upon are these: (1) Espinoza’s close friend and associate, Dr. Glen Hurlston, filed a federal lawsuit against, among others, the City of Kyle and its police chief Jeff Barnett; (2) immediately after the lawsuit was filed, the then-Kyle City manager sent a memo to all department heads to ensure city employees immediately report to the city attorney whether they had any contract whatsoever with Dr. Hurlston; (3) Espinoza was aware of the city manager’s edict; and (4) over a period of about the next two years, Hurlston and Espinoza were in regular contact by e-mail, test messages or phone calls and actually took trips together and Espinoza reported none of these instances to the city attorney.

Attorneys defending the city for firing Espinoza claim that refusing to report any one or all of these contacts amounted to insubordination. Espinoza and his attorneys argue, however, that upon receiving the written instructions issued by the city manager, Espinoza immediately sent an email to the city attorney’s office acknowledging that he had previous contacts with Dr. Hurlston and if the city attorney wanted to seek any information about those contacts, he should simply call Espinoza on his police department-issued wireless phone. He said the city attorney never followed up with him, but that was the attorney’s fault, not Espinoza’s and because he did follow the city manager’s specific instructions, he had not committed an act of insubordination even by continuing to have multiple contacts with Hurlston that were never reported.

Having described all this, however, may be completely irrelevant although it was argued over ad nauseam during this, the third day of the civil service suit Espinoza has filed to reverse his dismissal, because these events all happened outside the very small window that envelops civil services cases, which proscribe that civil service violations must be dealt with within 180 days of their commission. The city counters this argument by claiming that these situations, even though the overwhelming majority of today’s testimony dealt with them, were not actually the reasons Espinoza was fired; the actual reasons had more to do with a set of documents assistant city manager James Earp ordered Espinoza to surrender, but that Espinoza never did turn over to the city. Those documents include a copy of a check for $5,000 Hurlston gave Espinoza, copies of checks Espinoza wrote after cashing Hurlston’s check, information about a trip Espinoza and his wife took to San Antonio where they reunited with Hurlston and a copy of call details and text messages for a period between 11 p.m. Feb. 3, 2015 and March 3, 2015.

"Isn’t it a fact that up until the time (an independent private investigator hired by the law firm representing the city) prepared his report after he concluded his investigation that at no time did you provide any of the documents that were required of you to be provided by this directive from Mr. Earp?" Bettye Lynn, the attorney representing the city asked Espinoza.

"Yes, ma’am," Espinoza responded. "I didn’t have a copy of the check from Glen."

Lynn: "But you had the other items and you could have obtained a copy of your check from Dr. Hurlston, couldn’t you?"

Espinoza: "No, ma’am, you ordered me not to talk to him."

Lynn: "Well, if you had needed to have gotten the check from Dr. Hurlston you certainly could have asked (the private investigator) to produce it, couldn’t you?"

After Espinoza’s attorney Grant Goodwin objected on the grounds Lynn’s question called for speculation, hearing examiner Dr. Paula Ann Hughes simply asked Espinoza if he had provided the investigator with a copy of the check Earp demanded.

Espinoza: "No, I didn’t."

Lynn: "Would you agree that providing these documents would not have resulted in a threat to your safety or well-being? You were not facing immediate bodily harm, were you, sir/"

Espinoza: "No."

Lynn: "Are you aware of the definition of insubordination/"

Espinoza: "Yes, ma’am.:

Lynn; "There’s one excuse for not following a direct order. Do you know what that is? One excuse is that it’s a threat to your safety. You would get hurt."

Hearing examiner Hughes: "That’s not the only excuse. It’s one excuse."

Lynn (to Espinoza): "There was no threat to your safety or your getting hurt by turning over these documents, wouldn’t you agree?"

Espinoza: "Yes, ma’am."

Lynn: "Another excuse might be it would violate a law. You never told (the private investigator) the request was illegal or invalid?"

Espinoza: "I think my legal counsel responded to ths one."

Lynn: "And you had no legal reason in terms of fear of criminal prosecution to cooperate fully and turn over these documents."

Espinoza; "I didn’t trust the city."

Later in his testimony, Espinoza claimed three witnesses who testified against him Monday — Bill Sinor and city council members David Wilson and Becky Selbera — and one of Tuesday’s witnesses, Samantha Bellows, all lied about him on the stand and claimed he was conducting a legal investigation when Mayor Todd Webster awoke suddenly one weekday morning to find Espinoza standing in his living room.

Council authorizes privately funded sports complex that includes rec center

During a meeting that didn’t adjourn until almost 2 a.m. today, the city council authorized the development of an athletic complex in Northeast Kyle that will contain an indoor recreation center, a tennis complex that could be the site of a pro tour stop in the near future, and a tournament-class indoor/outdoor volleyball facility along the ability to add even more similar amenities at a later date, almost all of which will be paid for through private investments.

The city finally getting its own recreation center alone is the realization of a dream shared by a large number of Kyle residents, who, according to a citizen survey included in the most recent Parks Master Plan listed an indoor rec center at or near the top of their wish list for the city.

During the marathon meeting, the council also approved on first reading an ordinance replacing the city’s Ethics Code, agreed to banish the electric sign at City Square Park, approved a consent agreement that could lead to major commercial development along either side of FM 1626, passed on first reading a design guide intended the improve the quality of life for those living in new residential developments, and received no significant public input during the first in a series of public hearings on the FY 2017-18 budget and a proposed tax rate of $.5416 per $100 of assessed taxable property valuation.

City Manager Scott Sellers told the council that a series of agreements, the details of which will be brought before the council fairly soon, with private entities, will ultimately produce "a very, very innovative solution to a problem the city has been wresting with for the last 10 years and that is how do we fund a recreation center for the citizens of Kyle. Ten years-plus ago, the city received about 45 acres of land at the corner of Beebee and Dacy and engaged in a roughly million dollar architectural study with a firm, Marmonmok out of San Antonio. At the time it was discussed publicly and actually brought before council to appropriate $20 million for the facility, but at the time it was not a high enough priority on the city’s list of many, many projects to fund. So it has set idle for the last 10 years.

"About a year ago the city had the good fortune of being visited by several entities that wanted to so some form of recreation in the city. We looked at various parcels for those entities. It became apparent the city actually had a very good opportunity to leverage this Kyle Vista Park for a ground-lease situation with these entities. We had several entities over the last year that have we have been negotiating with. At this point we still have two that we are working with."

Sellers said the agreements call for the city to provide park land to these entities for $20,000 a year for 10 years and in return the entities will construct and provide certain recreational facilities.

"What we have done is we have brought entities together to satisfy a need in the community without impacting our tax rate," the city manager said.

Sellers said he could not reveal the names of the entities the city is negotiating with but could describe the type of facilities these entities planned to install in Kyle Vista Park:

"The first one is a tournament quality tennis complex with multiple outdoor courts and several center courts that are covered. The facility may actually house national tournaments or larger. The other entity is a tournament-class indoor/outdoor volleyball facility that will have a dozen or so courts, plus outdoor sand courts. This facility will be allowed to be multi-purpose for other indoor activities such as basketball. We are working with yet another entity that would have a large recreational-type facility that will also be multi-purpose for any sort of indoor sporting activity."

Sellers said there is also the possibility the city could partner with the school district to locate a natatorium at the facility. He said the two parties have already discussed such a joint venture. "For one reason or another, that did not materialize. However, I am of the understanding that option could still be on the table. If so, the city would very much like to continue to explore that."

Sellers said the city might still fund a skate park or a splash pad at the facility with taxpayers funds along with "a walking trail that goes around the entire complex. There may be soccer as part of this. There may be some sort of baseball or softball option here."

He said the city is still looking for private entities that would like to bring non-competing sports facilities to the project "so we can have the broadest range of recreational opportunities for our citizens."

Mayor Todd Webster said he was not aware of another municipality that had participated in a project that was this creative.

"Instead of waiting another 20 years for a recreation center, we’re really going to achieve something special by moving in this direction," Webster said. "We’re bringing in the types of things people are looking for."

Council member Travis Mitchell said the project made him extremely proud of the city’s staff.

"This typifies the culture at the City of Kyle," Mitchell said. "The $20 million price tag was a non-starter for everyone on council. Instead of having a staff that chose to just let this slide off the table, the city manager brought forward an impossible solution. It’s the truest definition of making lemonade out of lemons that I’ve seen at City Hall since I’ve been here. It makes me really proud of staff to know that you’re just not taking a non-starter as a non-starter but instead are finding creative ways of saving money while at the same time getting more than we ever hoped. This is a great testament to our city manager and our staff who didn’t quit on this thing."

I’ll have more to write on this city council meeting tomorrow evening.