City council misinterprets misleading information resulting in the unnecessary delay in the passage of a resolution

Section 255.003 (a) of the Texas Ethics Code states "An officer or employee of a political subdivision may not spend or authorize the spending of public funds for political advertising." And part c of this same section says "A person who violates this section commits an offense. An offense is a Class A misdemeanor."

Here’s what that means. Kyle City Council candidate Elmore Electme can run on a platform of transforming Tohellandgone Blvd. from a potholed filled street that swallows pedestrians, cars and 18-wheelers into a well-lit, superbly maintained rodeway with sidewalks and all the other amenities that befits a well-traveled esplanade. However, once elected and once a bond program is approved by the council that is designed to achieve his goals, he is forbidden by the above-referenced TEC statute from using his position on the council to urge voters to approve the bonds. Nor can the council as a body endorse the passage of the bond proposal.

Now, you may argue, simply voting in favor of putting the bond proposal on the ballot is an endorsement. The law doesn’t see it that way, however. The argument here is the council’s action wasn’t an endorsement of passage per se, it was simply an action supporting the democratic process of allowing the voters to decide whether to spend the tax money on the necessary road repairs.

To use another example. The Kyle City Council could decide it would be really nice if the Texas Department of Transportation had more money to spend on needed road upgrades and construction in and around the city. It could even pass a resolution urging the elected state officials who represent the area to find ways to make that happen. However, once something like last year’s constitutional Proposition 1 goes on the ballot, they are forbidden from using their positions, either collectively or individually, from campaigning in any way that suggests how voters should cast their ballots on the issue.

Got it?

Last night’s Kyle City Council agenda included a seemingly innocuous item that said: "A Resolution of the City of Kyle City Council requesting the members of the 84^th legislative session of the State of Texas to support increases of funding for the Texas Recreation and Parks account and large county and municipality Recreation and Parks Account Local Park Grant Programs, and the Texas State Park System."

This is, as Parks and Recreation director Kerry Urbanowicz described, asking the legislature to endorse refunding park grant programs and placing on an upcoming ballot a constitutional amendment to refund state parks through the use of sales taxes.

Council member David Wilson moved to approve the item and it was seconded by Mayor Pro Tem Diane Hervol. An unanimous passage without discussion was forthcoming until city attorney Ken Johnson said "You should proceed with caution on voting on anything that might turn into a constitutional amendment."

But then he said the Texas Municipal League "advises you do not pass resolutions supporting any constitutional propositions."

But that’s not what the council was considering since there was no constitutional proposition to support. What they were going to support was recommending their legislators endorse and work in favor of the concept of such a proposition.

Mayor Todd Webster asked Johnson "The advisory opinion specifically refers to a ballot initiative?"

"Yes," Johnson replied.

Webster then asked Johnson if he was saying there is no distinction between an actual ballot initiative and an idea for one?

"What I’m saying is if you pass a resolution supporting a proposition that will be voted on by the voters as a constitutional amendment, then TML advises not to that," Johnson said.

All well and good but that’s not what the council was getting ready to do. They were voting to support the concept of creating such a proposition, not a proposition that already existed.

Wilson, for one, saw right through the apples and oranges discussion.

"Because it’s not passed, because it’s maybe in the proposal stages, I think we want to communicate to our legislators that this is something that’s important to us," Wilson said. "When you are talking about individual pieces of legislation with numbers on them and information inside of them I am not one that will jump on that bandwagon. Once something goes on the ballot, I will defer to my city attorney and not promote that. I will promote the election, but not how someone should vote."

Mayor Pro Tem Hervol to Johnson: "Can you clarify something for me? If we’re supporting this resolution but yet it’s not made it to the ballot, where’s TML’s caution for council members to support the resolution prior to it making it to the ballot?"

Johnson: "Well, I will have to tell you I was caught a little bit unawares because I did not know that part of this resolution was tied to a constitutional proposition. I thought it was strictly a resolution supporting legislation for funding of the parks system. So I don’t have that election code information in front of me at this point because I did not know this could lead to a constitutional provision. With that said, from what I recall. It basically says that if you support as measure with a resolution than you may be in violation of what they call political advertising. If you look at the election code that same section it does define that is a measure and a measure is something — I do not have the exact language — but it is something that basically eventually ends up on the ballot for the voters to vote for in an election. It doesn’t say legislation. It doesn’t say constitutional proposition. It’s very indirect, very generic. It talks about something that if you support this legislation or this measure and this measure is the actual constitutional proposition that is held out for an election by the voters — that is as vague and as general as it gets. The only reason I bring it to your attention is there are both civil and criminal potential penalties if you are found in violation of doing this. So I feel I would be remiss in my duty if I did not bring that to your attention."

Mayor Webster: "So it’s your opinion that if we pass a resolution that supports any legislative measure that is not on the ballot yet, that in doing so we subject us to criminal or civil penalties. Is that what you just said?"

Johnson. "No. What I’m saying is that if you vote on legislation that you do know in fact will go to the voters in an election as a constitutional amendment then yes."

That italicized portion of Johnson’s response is the key statement. There is absolutely no way that any member of the Kyle City Council can say with absolute certainty that they "know in fact" that any portion of the resolution they were considering "will go to the voters in an election as a constitutional amendment." They could hope it might and I’m betting the purpose of the resolution is to try to convince legislators to make that election happen. But there is no guarantee that it will, which renders all of Johnson’s cautions to the council absolutely irrelevant. In fact, according to Urbanowicz, some legislators during previous sessions have tried to get such an amendment on the ballot but their efforts have, to date, failed. Urbanowicz also told the council even stronger resolutions on this subject have been passed by the city councils of "at least 20" other Texas cities, including Houston, Austin and San Antonio, without concern.

Johnson: "May I ask this out of an abundance of caution. Is there any way this can be set aside so I can get the language and bring it back. That I can provide you with the specific election code information."

Mayor Webster: "My recommendation is that we don’t have a lot of choice other than to accept the city attorney’s recommendation. If the city attorney says we need more time to consider the resolution than my recommendation is that we do that, my feelings and my opinions aside. I just don’t want there to be any risk whether or not I think such a risk exists."

With that, council member Shane Arabie, who said quite emphatically he supported the resolution, requested it be tabled until "we get our ducks in a row," which he expected would occur at the council’s March 3 meeting. Wilson, somewhat reluctantly, withdrew his motion to approve the agenda item and substituted a motion to table it for two weeks which was passed.

Mayor Webster concluded the discussion by saying: "I absolutely think we have every right to pass a resolution that petitions our legislators for what we want to do."

But the council didn’t do that. Instead they misinterpreted misleading information and then balked. It’s not the end of the world, by any stretch of the imagination. I suspect the same resolution will come before the council in two weeks and sail right through and a two-week delay isn’t going to affect anything one way or another. Yet, on general rather than specific terms, what this episode says to me at least is somewhat troubling.