The Kyle Report

The Kyle Report

Tuesday, August 29, 2017

City manager says Kyle’s preparations avoided storm damage

City manager Scott Sellers stood in a room the floor of which was still being dried by a pair of industrial fans because water had seeped through under the walls and damaged or destroyed much of the carpeting and told the city council this evening that Kyle "prepared very well" for the weekend onslaught of rain and no major flooding occurred in the city as a result of the storm.

Much of the carpeting on the north end of the council chambers had been ripped out and water stains were evident on what was still in place. Fortunately, the floor of the council chamber is covered with carpet tiles so, if the city can find matching tiles, the entire carpet might not have to be replaced. The two giant fans drying the room were turned off just before the council meeting began at 7 p.m. to allow those inside to hear what was being said and were turned back on once the meeting adjourned.

Sellers spent time this weekend manning a power vacuum personally trying to suck up some of the water that blanketed the floor of the council chambers, the result of 50-plus straight hours of incessant rainfall that dumped eight-plus inches of rain on the city.

"The City of Kyle prepared very well for the hurricane," Sellers told the council, although, to be accurate, Hurricane Harvey which devastated and continues to devastate a large swath of Coastal Texas, did not hit Kyle, per se; only rains and some wind gusts produced by the storm affected us.

Sellers said the city began meeting with county emergency officials early last week and by midweek the city was making its "pre-disaster preparations which involved going through and unclogging any clogged culverts. We went to all of our known flooding areas and ensured that any debris was removed from those areas and that culverts were cleared. We encouraged our citizenry to pick up litter and check their storm drain lids. We staged barricades around the city. We strategically placed sandbags around the city and we also handed those out to homeowners on properties we knew were prone to flooding."

What Sellers did not tell the council was that sandbags were also placed strategically outside the north wall of the City Hall chambers but they did not prevent the water from seeping through.

"All in all, we had everything ready for this disaster which we learned from the last two major storm events here in Kyle," Sellers said. "And that pre-planning paid off. We were fortunate not to have any major flooding here in the city. We did not activate any emergency shelters here. We did have to close all our major low-water crossings, but not for long."

As far as what actions the council actually took during its 15-minute meeting (that was extended by an executive session that last three times as long as the regular meeting), it amended the city’s sign ordinance to permit businesses to erect more distinctive signage than the current ordinance permits and passed on first reading the ordinance adopting the budget for the upcoming fiscal year and a 3.32-cent reduction in the property tax rate. It is expected the budget and the tax rate will be formally adopted at next week’s council session.

Saturday, August 26, 2017

Storm update might be most interesting part of council meeting

Tuesday’s city council meeting is, for the most part, routine and should be over in less than an hour, although this council is known for spending an extraordinarily long time in executive sessions. The most interesting item is what, following a normal weekend, would have been the most benign and that’s Item 4, the City Manager’s Report. This is a standard item that appears on every agenda and offers City Manager Scott Sellers the opportunity to update the council and the rest of the interested world "on various capital improvement projects, road projects, building program, and/or general operational activities where no action is required." Although this week this item was supposed to give Sellers an opportunity to talk about Wednesday’s 1:30 p.m. Alsco Linen groundbreaking ceremony, I’m betting Sellers will spend most of his time discussing the city’s staff response this weekend to the effects of Hurricane Harvey, especially with the news that Wednesday's groundbreaking ceremonies have been postponed, presumably because of Harvey.

Other than that, this meeting appears to be a real snoozer. The council will pass, probably 6-1 (with you-know-who dissenting), the first reading of the ordinances to approve the city’s proposed $75.5 million budget for the fiscal year beginning Oct. 1 and the corresponding $.5416 per $100 of assessed taxable valuation property tax along with the second and final reading of an ordinance relaxing the city’s sign ordinance to allow for more unusual signs. You can probably safely bet that this, too, will have at least one dissenting vote. It is interesting that the sign ordinance is the only item on the Consent Agenda and a one-item Consent Agenda is an oxymoron, but there you have it.

Still depending on how long the council spends in executive session discussing a pair of economic development projects, including the athletic facilities at Kyle Vista Park (dubbed Project Just Peachy) and how many misinformed citizens show up once again to speak during the citizen comment period, this meeting should adjourn by 8 p.m.

Not that it will. Just that it should.

Thursday, August 24, 2017

Wait a minute there, what was the last thing again?

How successfully can you hide a dinosaur in Kyle, and hope everyone just doesn’t pay it any attention? That’s what I thought when I read the City of Kyle’s announcement about what it plans to do to prepare the possible onslaught of Tropical Storm Harvey.

Here’s how that announcement begins:

"With Tropical Storm Harvey potentially headed straight for Central Texas, the City of Kyle is mobilizing staff in preparation of severe weather including heavy rain and high winds.

"Here is a list of just some of the things Kyle is doing in anticipation of Harvey:"

Then the list appears in bulleted form:
  1. placing barricades at low water crossings,
  2. preparing communications plans,
  3. cleaning drainage culverts,
  4. draining Lake Kyle,
  5. staffing appropriately,

Whoa! Stop right there! Go back! What was that Number 4 again that you tried to sneak right by? You’re draining Lake Kyle? Like you’re actually planning on taking all the water out of this much-loved and treasured city amenity?

On reflection, I guess this sorta, kinda makes strategic sense, especially if the city does indeed get hit with what some predict could be as much as 24 inches of rain during the weekend. But I can’t help but think the city could wind up with a lot of egg on its huge face it the rains don’t come, at least not in those catastrophic amounts, and Lake Kyle Park becomes Dry Hole Park. Does the city have a plan to refill the lake in case that happens?

I dunno. It just seems a tad drastic to me, but then I’m not the one who would be held responsible in the worst case scenario. Hold on tight.

Secretary of State’s office torpedoes Rizo’s council candidacy

Robert Rizo had every reason to believe he lived inside the city limits of Kyle, if, for no other reason, than the fact he’s been billed for and dutifully paid his city property taxes for close to three decades, if not longer. It was only when he filed to run for the District 2 seat on the Kyle City Council that he learned otherwise.

A copy of Rizo’s application to be a candidate, along with the applications of the nine other candidates who filed to run in the November election, were sent to the Secretary of State’s office, which oversees all elections in Texas and which reviews all such applications to make sure all the candidates meet all the state eligibility requirements. And that’s when, multiple sources have told The Kyle Report, the Secretary of State’s office informed city officials that, while a small sliver of the land Rizo has been paying taxes on lies within the city limits, the overwhelming majority of it, including the residence Rizo listed on his application and, even more importantly, on his voter registration, does not. Thus, the Secretary of State’s office ruled, Rizo was ineligible to run because state law requires a candidate to be registered to vote "in the territory from which the office is elected."

The city, these sources said, tried to find some kind of a loophole to let him stay on the ballot, but, in the end, were not successful.

The only upside of all this for Rizo, the sources confirmed, is that he is eligible for a refund on the city property taxes he’s paid, but only those he’s paid during the last five years. None of the sources who talked about this on background said they knew of a legal recourse available to Rizo to get his name back on the ballot, meaning Tracy Scheel will become the next city council person for District 2 following the November elections.

Bill Sinor was also indirectly affected by the Secretary of State’s ruling. Sinor originally filed to run for the District 2 seat, but subsequently withdrew his candidacy for that position and threw his hat into the ring with three others to run for mayor. I do not know whether Rizo’s decision to run in District 2 had any effect on Sinor’s decision to drop out of that race, but records show Sinor withdrew after Rizo filed.

Scheel now unopposed in District 2

For reasons that are not all that clear, Tracy Scheel is now the only person who will be listed on the ballot for the Kyle City Council District 2 seat being vacated by Becky Selbera. City Secretary Jennifer Vetrano informed Scheel of the development today during the drawing for the order in which the candidate’s names will appear on the Nov. 7 ballot.

Vetrano said name of Robert Rizo, the only other candidate to file for the District 2 seat, has been pulled from the ballot. Vitrano said the reason Rizo was disqualified from running was "Article 141.00A6" of the Texas Election Code. Such an article doesn’t exist, however. The closest thing I could find was Section 141.001 (a) (6) which states a candidate for election must "on the date described by Subdivision (5), be registered to vote in the territory from which the office is elected." My efforts to reach Rizo were unsuccessful.

That means, of course, barring unforseen legal actions, Scheel will be the District 2 city council representative.

As a result of today’s drawing, here’s the order in which the names will appear on the ballot

  • Bill Sinor
  • Jaime Sanchez
  • Nicole Romero-Piche
  • Travis Mitchell
City Council District 1
  • Marco Pizana (although it might appear as Pizana, Marco)
  • Dex Ellison
City Council District 4
  • Alex Villalobos
  • Tim R. McHutchion

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.

Tuesday, August 15, 2017

Hurlston may not appear during Espinoza hearing, but his words will

The attorney for fired police sergeant Jesse Espinoza made the surprise announcement today that Dr. Glen Hurlston, the embittered Louisiana anesthesiologist who played a key role in the events that culminated in Espinoza’s dismissal, won’t be called as a witness during the rehearing on the legitimacy of the firing, temporarily, at least, erecting a major obstacle in the city’s path to proving its case.

However, after an afternoon that featured a series "in-chamber" private conferences held by hearing examiner Dr. Paula Ann Hughes between Grant Goodwin, Espinoza’s attorney and Bettye Lynn, the attorney representing the city, Hughes announced she would allow Hurlston’s written testimony from the record of the first arbitration hearing to be entered in the record of this current hearing. Hughes had previously upheld Goodwin’s objections to entering the complete testimony into the record, but reversed course just prior to recessing the hearing for the day with Espinoza himself on the witness stand.

At one point Lynn was frustrated trying to demonstrate that part of Espinoza’s testimony today directly contradicted Hurlston’s testimony from the previous hearing, which never came to a conclusion because the hearing examiner in that instance died before he could render a decision. In the first hearing, however, Hurlston had testified before Espinoza took the stand, which gave the city the ability to highlight the differences in their testimony. But after Goodwin announced today he had no intentions of calling Hurlston as a witness this time, the only way Lynn could illustrate those differences would be to introduce Hurlston’s previous testimony, something that, at first, Hughes appeared reluctant to do.

At the heart of the city’s argument is the assertion that Hurlston recruited a willing Espinoza, who had bitterly opposed the hiring of Jeff Barnett as the city’s police chief, in what has been described as Hurlston’s personal vendetta to get Barnett fired as chief. The allegations revolve around the notion that after Hurlston filed a federal lawsuit against Barnett and the City of Kyle, the doctor gave Espinoza money and paid for vacations for Espinoza and his family in return for Espinoza providing Hurlston with damaging information he could use his a lawsuit. Espinoza did, in fact, testify today he told the city council at one point that Hurlston would agree to drop his lawsuit against the city if Barnett was fired.

Earlier in the day, former city council member Samantha Bellows testified she was "devastated" to learn that Espinoza, while a member of the Kyle Police Department, was spreading what she called "a vicious lie" that she was having an extra-marital affair with Mayor Todd Webster. She said when she learned of what Espinoza was doing, she filed a "formal complaint" against Espinoza on Jan. 24, 2015, with interim city manager James Earp.

She said that during one of her regular meeting with constituents she was asked "point blank" by one person "Are you sleeping with the mayor?"

"I laughed," Bellows testified, "because I thought he was joking. But it turned out he wasn’t. The citizen then told me he had been approached by a police officer in uniform who told him I was sleeping with the mayor and that’s the reason why my marriage had failed.

"It was something that was a little more than a hurt to the ego," she said. "It was devastating to me to think that someone was going around the community saying this and intimating that I had voted in certain ways because I was sleeping with someone, which I was not."

She testified that she categorized the rumor in her complaint as "a vicious lie. It’s malicious. It’s inappropriate. It’s unprofessional. Any other unflattering word I could find in the dictionary I would use in this situation."

She said she was especially alarmed by the fact that the rumor was being spread by a uniformed, sworn police officer.

"Kyle’s police officers have a lot of weight," she said.."And this was not just about me. I don’t have children who could also be damaged, but the mayor did. And I was friends with his children and I was a friend with the mayor’s wife and to have to explain to them what was going on was a horrific moment, extremely exasperating."

Monday, August 14, 2017

City paints portrait of corrupt cop

City attorneys presented testimony today that described fired Kyle police sergeant Jesse Espinoza as insubordinate, physically and verbally abusive and intimidating to elected city officials, and an officer who neglected his responsibilities to uphold the law.

The testimony, from the mayor, the city’s two most senior council members, an assistant city manager and a member of the Citizen Police Academy’s alumni association, came during the opening day of an arbitration hearing demanded by Espinoza as part of his attempt to reverse his indefinite suspension two years ago. Espinoza’s side has yet to present any witnesses of its own. Although Espinoza’s attorney, Grant Goodwin, has not publically outlined his case, it appears he will attempt to argue Espinoza’s dismissal was not for cause, but in retaliation for his ongoing campaign against Kyle Police Chief Jeff Barnett, which Espinoza engaged in, according to Goodwin, to protect the department from Barnett.

Barnett has yet to testify and neither has the person likely to be the city’s most important witness, Ellis County Sheriff Charles "Chuck" Edge, who, as acting Kyle police chief in May 2015, signed the order indefinitely suspending Espinoza, presumably for insubordination.

Assistant City Manager James Earp dealt directly with that insubordination claim during today’s hearing, testifying Espinoza refused in 2014 to turn over documents Earp demanded Espinoza surrender.

"He never delivered the documents that I directed him to submit," Earp said.

"Did you consider his non-responsiveness to constitute a violation of a city or departmental directive," the city’s attorney, Bettye Lynn, asked Earp.

"I consider that to be insubordination," Earp replied. "If I direct someone to do something and they refuse to do so, that’s insubordination."

Mayor Todd Webster testified he was "upset" when he awoke one morning to find a uniformed Espinoza standing in his living room and didn’t believe the reason Espinoza gave for entering his home unannounced. The incident occurred in 2007 when Webster was the District 6 city council representative and was basically commuting between Kyle and Ohio, where his father was on his deathbed.

"I had come home from one of my trips to Ohio and I had gotten in late," Webster testified. "I pulled my car into the garage and had laid down on the couch in our front living room, turned on the TV and I guess fell asleep. I awoke the next morning. It was light outside. I can’t say exactly what time it was, but I would guess it was around 8-ish, around the time most people would normally be going to work. And I awoke to a noise and I found Mr. Espinoza standing in my house.

"I was startled, I got up pretty quickly and asked him what he was doing in my house. His answer was that he had noticed that my car was not in the driveway and when he checked my doorknob and the door was unlocked, he felt that was suspicious enough to give him the authorization to come in my home.

"I was upset about it, of course and I certainly didn’t accept the explanation and asked him to leave. And he did."

When Lynn asked Webster whether he had an opinion on whether Espinoza "should be returned to the police department," the mayor replied:

"I do. He shouldn’t be returned to the police department. Based on my personal interactions with Mr. Espinoza, if that’s indicative of how he conducts himself and the way he interacts with other people on a day-to-day basis, it would serve to undermine the public’s confidence in the police department. I also think there’s a potential for morale issues in the department if he returned at a time when the department, at least from my view, has made great strides in getting to a place where the community can be really proud of it."

Earlier in the day council member Becky Selbera testified Espinoza almost ran her over in his Tahoe police vehicle as she emerged from a council meeting in which the council made a decision over Espinoza’s objections to hire a police lieutenant, who would have direct supervision over Espinoza on the night shift. Her council colleague, David Wilson, testified that Espinoza was so verbally abusive to him following a council meeting, another police officer, Sam Valverde, had to pull Espinoza away from Wilson. Selbera said she witnessed that altercation and supported Wilson’s version of the encounter.

Bill Sinor testified when he was on a neighborhood watch patrol in December 2014 he was on a cul-de-sac road when "Espinoza drove in, on duty, and we were sitting driver’s window to drive’s window and a vehicle pulled into the subdivision with its headlights on, but obviously no rear lighting at all." He said he brought this to Espinoza’s attention and that Espinoza turned his head, saw the vehicle in question, and then turned back to Sinor and said "Maybe I’ll get him later."

"Were you aware that in the termination notice he was charged among other things with neglect of duty?" Lynn asked Sinor.

"I have heard that," the witness replied.

"Did that appear to you to be him neglecting his duty?" the attorney asked.

"I would say it was, yes," Sinor answered.

Earlier Sinor testified that Espinoza told him that when Kyle was looking for a new police chief, Espinoza wanted Joe Munoz hired over Barnett because Munoz had promised Espinoza he would promote him to captain.

Saturday, August 12, 2017

A whopper with cheese, onions, fries and a shake

Tuesday’s City Council meeting is not designed for sprinters. This one is for marathoners only. The agenda contains 36 items, many —if not most — of which could produce passionate debate. Fasten your seatbelts and stock up on energy supplements.

It’s difficult to single out one item on this agenda for special treatment, because there’s so many that deserve some sort of concentrated attention: replacing the city’s ethics ordinance; how the city appoints members of boards and commissions; a proposed design guide for residential developments; council member Travis Mitchell’s "First Year on Us" small business incentive program that could be turned into a political football match simply because Mitchell has formally entered the race for mayor; additional revelations concerning the "Just Peachy" economic development project that, to a large degree, prompted the aforementioned change to the city’s ethic ordinance; and, of course, there’s that little matter of discussing the proposed budget for the next fiscal year as well as the seeking of public input on the recommended tax rate of $.5416 per $100 taxable valuation, about a 3½-cent decrease from the current rate, but, because of rising property values, just about the highest rate the council could set without triggering the possibility of a rollback election. Oh, yeah, there’s also three presentations scheduled: on the road bond projects, the planned veterans’ memorial and the city’s beautification plan.

So, to be different, I guess I’ll start at the end of the agenda (well, almost at the end — I’m going to try to ignore what appears to be another extended executive session during which three economic development projects, including Just Peachy, will be discussed and a decision might be reached on whether to pursue legal action against one or more measures passed by the Texas Legislature, presumably during the special session, which doesn’t officially end until Wednesday) and slowly, laboriously, work my way toward the beginning. The last item on the agenda, Item 33, is "Discussion and possible action regarding relocation of marquee." There is absolutely nothing accompanying this item to suggest what this might be about so it’s anybody’s guess.

And since I’m an "anybody," I’m going to take a guess. I have a feeling it has something to do with getting rid of that electronic sign in City Square Park, which, as I read the city’s sign ordinances, is technically non-conforming anyway and whose banishment would go a long way to promoting the historical significance as well as the beautification of that downtown attraction. The way I interpret the current sign ordinance, flashing electronic signs with variable messaging capabilities are only permitted in Kyle along the I-35 corridor. And City Square Park is supposed to be a historical site and I doubt any rational person would advocate for a flashing electronic sign heralding an upcoming charity bingo game on the Gettysburg Battlefield or a flashing neon "George Washington Slept Here" sign on the grounds of Mount Vernon.

Next is Item 32, a touchy one that could provoke some interesting discussion that could escalate into something more intense than could be labeled as simply "a discussion" — the first reading of "an Ordinance repealing and replacing the City's Code of Ethics Ordinance No. 581, as amended; providing an effective date; and providing for open meetings." I literally spent six hours earlier today pouring over the proposed revised language and could find absolutely nothing in there that jumped out at me as alarming, nothing that set off the warning sirens. Although I imagine one or two council members will have been programmed to argue the contents of the revisions.

The most noticeable change I came across was in the section that describes the composition of the city’s Ethics Commission and the terms of those commissioners. But among the material accompanying this item was a document labeled "Exhibit 1 Redline." Now I always assumed that in a "redline" document, all the words in red ink signified changes to the original document. However, in the Section 2 ("Structure of the Ethics Commission’) paragraph (d)(2) states "no member of the commission shall be an elected public official" and the only word in red in that section is "commission." Apparently, the original ordinance said "board," not "commission." So, if you follow the theory that if it’s not in red, it hasn’t been changed, then one has to wonder why Teresa Tobias, an elected member of the Hays CISD board of trustees, is also member of the city’s Ethics Commission. Unless, of course, this language prohibiting elected public officials from serving on the Ethics Commission really is a change, even though it’s not labeled a change by appearing in red ink. And if that’s true, what other changes might be hidden in this ordinance that are not highlighted in red either? Wondering about all that today really did make me severely dizzy, but, of course, this not the first time, nor will it be the last, the city has done something that sent my cranium spinning out of control.

But what seems to have been changed in this section is the language that describes the terms of the commissioners. Although the section describing terms begins "Commission members shall be appointed to three-year terms," don’t take that literally because it’s mathematically impossible for a commissioner’s first term to be a full three years. Here’s why. Each city council person gets to appoint a commissioner and that commissioner’s term runs concurrently with the term of the council member who made the appointment. So the only way a commissioner’s first term could be a full three years would be if it began on the date the council person assumed office. But that would be highly unlikely because the council member making the appointment must place that potential appointment on an upcoming council agenda for approval and that can only happen after the council member officially takes the position. If you’re still reading this, I’ll bet your head is spinning now, too.

Here’s what that means. If this ordinance is approved, it is likely that as many as four — the commissioners appointed by Mitchell and the retiring Mayor Todd Webster, as well as council members David Wilson and Becky Selbera — and possibly even five persons will have to be nominated or re-nominated to the Ethics Commission following the November elections. What is in red ink are the words that follow "appointed to three-year terms" and those words are: "to serve concurrently with the corresponding Council Member’s term. Upon a Council Member vacating his/her seat, the corresponding appointment immediately expires."

The rest of the changes appear to revolve around who must file financial disclosure reports and when they must be filed, along with the introduction of a simplified form someone may file if they have no changes to their previously filed financial disclosure form from one year to the next.

Enough of that. Let’s move up a notch to Item 31, the one that has to do with how the city appoints and re-appoints persons to serve on the various boards and commissions. Currently, a citizen wishing to serve on, for example, the Planning & Zoning Commission will, when a posted vacancy occurs, submit an application to serve on that commission. What has apparently transpired in the last couple of months, however, is that the city has been blessed with a large number of extremely qualified persons applying for specific board/commission vacancies, which means the city has to turn away these qualified applicants if only, say, one position on that board or commission is vacant. So a new paragraph is being proposed for the process which states: "In those instances that multiple interviewees exhibit the virtues and qualifications necessary to fill a single position, those candidate(s) not chosen to fill the solicited Board/Commission vacancy, can and should be recommended to fill other city Board and Commission vacancies for which they are additionally qualified. With agreement from both the applicant and the city review panel, the City Council can alternatively approve the recommendation from the review panel for an alternative appointment to a different Board or Commission vacancy, pursuant to the term length of that Board or Commission."

The new language also allows for the chair of a board or commission to recommend the City Council approve the re-appointment of a board/commission member whose term is expiring without that person having to go through the entire re-appointment process. In the case of a chair retiring, the mayor can make a similar recommendation.

Item 29 is designed to say exactly where in Kyle Sprint, AT&T, Verizon et al can build antenna towers or collocate on existing structures. The simple explanation here is that the city wants to restrict the location of these towers to "industrial areas," "highway rights-of-way" and "retail and commercial areas" as long as none of these are "adjacent to a municipal park, residential area, historic district or design district." The one noticeable conflict I found with this is that the city’s overlay districts are listed as among the "least preferable locations" for these structures, yet these overlay districts not only straddle "highway rights-of-way" they are actually named after them. Go figure.

Item 15 is the first reading of changes to the city’s sidewalk ordinance that allows the city "at its sole discretion" to repair a sidewalk even though the ordinance specifies that "All persons owning lots in this city upon the streets shall keep the sidewalks around the same in good condition" and failure to do so could result in fines of between $5 and $100. The change also states that if the city does decide to repair a section of a sidewalk that action "does not remove the requirement upon the property owner to properly maintain sidewalks and in no way absolves the property owner from liability." So there. A companion piece on the agenda, Item 16, is the awarding of a contract not to exceed $20,000 for "a pilot sidewalk repair program"

Which brings me to Just Peachy which is a plan that allows the city manager "to solicit land leases to third-party private groups to design, build, program and maintain recreational facilities on the (soon-to-be established Kyle Vista) park land and to bring these leases before City Council to be considered."

In other words, if former Yankee Derek Jeter, who just this weekend was named the head of a group purchasing the Miami Marlins baseball team, wanted to relocate that team to Kyle, this resolution would authorize City Manager Scott Sellers to begin negotiations with Jeter about building a stadium for the team in Kyle Vista Park, which is destined to be located immediately west of Chapa Middle School.

So, OK, neither the Marlins nor any other major league sports franchise is thinking about moving here, but remember all that talk from the Hays school folks about a natatorium? Hmmmm. And it’s quite feasible that a for-profit entity would be looking for a spot to locate a tennis club and the accompanying courts, an owner of a semi-pro soccer team might be looking for a location for a home stadium. There’s all kinds of possibilities that could carry the caveat of also providing fields, recreation centers, stadiums, etc., for public uses as well. Frankly, I think Just Peachy has reached the point where the city knows exactly who and what is going to locate a facility in Kyle Vista Park but, for competitive reasons, city officials are not at liberty to make that information public just yet. I do expect such revelations to be imminent, however. Watch this space.

Item 9 is interesting for what’s not included. It is proposed consent agreement among the City of Kyle and others with an entity known as the North Hays Municipal Utility District No, 2. The draft resolution states the bill passed by the state legislature that created the MUD is attached to the agreement as well as "the identification of the land within the district." What’s not included with the agenda is either the bill or the land identification, but I am presuming this is about some land north or Kohlers and west of FM 1626 that Plum Creek wants to develop as, in the words of the resolution, "a master-planned, primarily commercial use community which will include commercial and residential uses." According to the resolution, the developer intends to propose that cost for the district’s infrastructure be paid by the "imposition" of an ad valorem property tax. What’s not included is the tax rate or exactly on whom this additional property tax will be imposed upon. One would assume it would be strictly on owners of property located entirely within the MUD, but that isn’t really specified. I know for sure that residents of other parts of the Plum Creek MUD certainly don’t want to see a hike in their property taxes to pay for this.

From the If-You-Can’t-Get-It-Right-the-First-Time Department is the reappearance, as Item 8, of the proposed electrical franchise agreement with Pedernales Electric Cooperative. Someone at the city deserves more than just a good pat on the back and a hearty "well-done" for this deal because the new agreement cuts the term of the previous contract in half, from 10 years to five, while at the same time more than doubling the franchise fee, from 2 percent to 4.5 percent of gross revenues Pedernales receives from the sale of electricity and other power to customers in Kyle.. It is estimated that next fiscal year alone, this new agreement will mean $593,000 in additional funds to the city’s treasury. The first time this proposal appeared on the council’s agenda, the wrong contract was attached to it. This proposed ordinance definitely states 4.5 percent over a five-year life of the contract.

Item 6 is a public hearing to get citizen comments on the proposed tax rate for FY 2017-18 which, as it turns out, at $.5416 per $100 of taxable valuation, is $0.003 below the rollback rate, which was the maximum allowable rate set by the council at its Aug. 5 budget workshop. That proposed amount is also 3.32 cents below the current rate, although increased property valuations along with the fact that the school district, which accounts for around 54 percent of a property owner’s total property tax liability, and other Hays County taxing entities are not lowering their rates, means Kyle property owners will still have a significantly higher tax bill for this upcoming fiscal year. Personally, I would like to see the rate set at $.5407, which may seem significant but, in fact, would only lower the city tax bill of the owner of property currently valued at $250,000 by a measly $3. It’s just the idea of an even larger tax rate cut would make residents feel a little better about their municipal government. As a compromise, I could live with moving that $.0009 lower rate I just mentioned from the M&O side of the city's proposed rate to the I&S side.

There’s also a public hearing on the city manager’s proposed $74.8 million budget for the upcoming fiscal years and you’ll be able to spot, quite easily in fact, those who have been spending too much time around the stupid pill dispenser — they’ll be the ones criticizing the proposed budget..

Item 3 is Sellers’s update of Kyle’s Beautification Plan. Personally, I enthusiastically support converting part-time code enforcement positions into full time ones to add muscle to the city’s code enforcement initiatives. For too long, I have thought, the city has failed to place the proper emphasis on code enforcement. I do, however, have major reservations about spending $1 million "to repair and install irrigation on Kyle Parkway and median from Dacy to train tracks, install and maintain landscaping." It has been my experience that, largely because of the Texas climate, such efforts are doomed to fail. The plants wither and die in the Texas heat and no amount of irrigation can keep their appearance attractive throughout the year, A far preferable option, and one that’s far more environmentally as well as economically sound and viable, is xeriscaping, not only for the above-cited Kyle Parkway median, but all other similar highway beautification projects on the city’s beautification agenda.

And I’ve only gone into detail on about one-fourth of the items included on Tuesday’s City Council agenda. One fourth!!!!! Did I originally describe this as a marathon session? Perhaps a better term would be "sleep-over."