Our sex offenders are OK, yours are degenerates

The City Council once again postponed action last night on a proposed sex offender ordinance so that the city attorney could add language that would exempt offenders currently living in the city. In addition, it did not seem council members were close to a consensus about exactly what the restrictions should be.

As initially proposed by the Police Department, the ordinance would prohibit a registered sex offender from residing “within 1,500 feet of any premises where children commonly gather.” The ordinance defines such premises as “a public park, private or public school (excluding in-home schools), day-care center, or private recreational facility, including a park, water park, pool, playground, skate park, arcade or youth athletic field owned by a residential property owners association, or for which an entrance, admission, or rental fee is charged.”

Interestingly, the proposed ordinance would not prohibit sex offenders from going to any of these “premises,” or even “hanging out” at a pool or an arcade or a park. They just couldn’t live within 1,500 feet of them.

According to Police Department data, some 60 registered sex offenders currently live in Kyle and Council members apparently were concerned that passage of this ordinance would force at least some of them to relocate, quite possibly out of the city entirely. That concern was intensified when the wife and 9-year-old child of a registered sex offender living in Kyle spoke during the citizen comments portion of last night’s meeting. 

The council’s feeling appeared to be that (1) those Kyle homeowners currently registered in the state’s sex offender database should be “grandfathered” from the provisions of the ordinance and (2) those Kyle renters in the database should also be protected when they are required to renew their leases. City Attorney Paige Saenz was asked to draft language for the ordinance to meet these requirements and enough council members said they wanted to actually read that language before they voted on a first reading that consideration of the item was postponed until the March 16 meeting. Saenz warned the Council that granting exemptions to the ordinance could make it more liable to legal challenges.

To put it simply, the ordinance, if passed with the new language, would only require registered sex offenders who wish to relocate to Kyle after the ordinance goes into effect to live in one of the city’s sex offender ghettos, but those already residing here would not be affected in any way.

How large those ghettos will be is also still undecided. Mayor Travis Mitchell favored the 500-foot restriction, arguing that offenders should not live “in the line of sight” of any area where children might congregate, but pushing them further away was too punitive. Council person Ashley Bradshaw, who is coming across as the most extreme hardliner on this issue, appeared to favor a 2,000-foot restriction, which, for all practical purposes, would prohibit anyone in the database from relocating to Kyle. And Council member Yvonne Flores-Cale said she was willing to split the difference, and approve a 1,000-foot barrier.

Council member Dex Ellison was successful in forcing the removal of one clause in the ordinance that said “WHEREAS, the City Council finds from evidence and statistical reports reveal that the recidivism rate for released sex offenders alarmingly high, especially for those who commit their crimes against children;” arguing that, in fact, the Council had never been presented with any such “evidence and statistical reports.” 

Kyle police call city “hotbed for sex offenders”

You can add yet another distinction to the city of Kyle. In addition to being “The Pie Capital of Texas” and whatever honor the city plans to bestow upon itself for selling the first fajita in the entire Free World, the city, according to the police officer whose job it is to monitor such things, can now add the title of “Hotbed for sex offenders.”

And despite cautions from Mayor Travis Mitchell and council member Michael Tobias that the City Council might be trampling on the civil rights of some of its citizens, the majority of the Council voiced arguments last night I had not head in more than 60 years, back during the days when local officials were trying to pass laws prohibiting members of racial minorities from living in certain communities. “As a mother, I just don’t want one of those types of people living next door to me,” said council members Yvonne Flores-Cale and Ashlee Bradshaw.

This all came about during the City Council’s discussion of an idea from the Kyle Police Department that would essentially prohibit a person convicted of a sexual offense against a child from living anywhere in the city. They could purchase a home in Kyle, the police admitted, but they could not live in that home.

“These people do have civil rights,” Tobias said. “They did serve their time. They are paying the price for it. But they are still part of our society, still part of our city. They work. They could be business owners. They could be living a perfectly normal life.”

“But we have to feel safe in our homes,” Flores-Cale said, although she stopped short of advocating a similar ordinance against persons convicted of home invasions, rapes, or even home burglaries.

City attorney Paige Saenz said the courts have ruled such laws are constitutional as long as there are still places within the city in which a sex offender could live. Although it appears there are small pockets on the fringes of the city that would not be covered by the ordinance, it doesn’t appear any residences are located in these pockets. The proposal presented last night would bar a registered sex offender from living anywhere within 1,500 feet from “where children commonly gather.” Mayor Mitchell asked the police department to return with maps that showed what areas would be covered with that footage at various intervals between 1,000 and 1,500 feet from those areas. He did not, however, specifically ask to determine what, if any, type of housing is available in those areas that are not impacted by the ordinance.

It’s also interesting to note that Texas law allows registered sex offenders to carry guns beginning on the fifth year anniversary of being finished with that person’s sentence, including probation. In other words, five years after their sentence, registered sex offenders can drive into Kyle and shoot local citizens, but this ordinance would not allow them to live among them.

“We’re five minutes south of Austin, right next to San Marcos,” officer Dago Pates, who first came up with the idea for the ordinance, told the Council last night. “We’re a hotbed for sex offenders to want to be in. The price is right, The location is right. We’ve just had an influx of sex offenders coming in.” That “influx,” he said, totaled 68 persons living in Kyle who are registered with the state as a sex offender. The ordinance would not affect any of those 68 who are currently homeowners, but if they are leaseholders, they would be prohibited from renewing those leases. Bradshaw said she would be in favor of riding all 68 out of town on a rail.

The next step is for the Council to consider adopting such an ordinance, which could possibly take two separate votes and, one would assume, a public hearing attached at least to the first reading of the proposal. It is expected the Council will take up debate and possibly vote on a first reading at its next meeting, Feb. 16.

A. Abuse of privilege; B. Council members can’t be trusted; C. Both

I’m not making this up. This actually happened. If you don’t believe me, go on line and check out the recording of last night’s City Council meeting.

It’s 11:27 p.m. The council files back to the dais following a two-hour, 11-minute secretive executive session outside the view of the public, and Mayor Travis Mitchell says: "There was no action taken during executive session. There will be action taken now. Council member Scheel." Then Council member Tracy Scheel says "Mayor, I would like to offer a motion to authorize the city manager to enter an agreement with the Make-A-Wish Foundation for fund raising and a license agreement related to park land improvements."

OK, I’ve been putting up with this crap for four years now, but this time it just seemed to me the City Council had jumped the shark. First of all, there’s the mayor’s falsehood, his outright lie. Look, I have all the respect in the world for Mayor Mitchell. I spotted him as a positive political influence before he even formally announced his intention to seek a council seat. I thought way back then he was the most qualified person to succeed Todd Webster as mayor of this city and I remember meeting quietly with him at a local coffee shop where I told him I was convinced Webster would not seek re-election and urged Mitchell to forego a potential run for council seat and instead put all his energies and resources immediately into a mayoral run. I was afraid if he ran for council and then a year later tried for the city’s top elected post, his opponents in the race would try to brand him as an opportunist. As it turned out, I completely over-estimated the political sophistication of those seeking elected office in Kyle and my concerns were unwarranted. Not only that, Mitchell is only the latest mayor to tell these kind of lies. Mayor Webster did it before him and I imagine other mayors did the same thing before that.

Here’s the deal: Either Scheel completely blind sided every other member of the City Council by coming up on the spur of the moment this cockamamie notion for the city manager to enter into an agreement with the Make a Wish Foundation (Anyone out there crazy enough to wager that’s what really happened?); or, what is more likely, the council did, in fact, take action outside the public purview and decided the city manager should enter into such an agreement. In other words, the council took action in private, outside the view of the public, that should have been conducted in an open meeting. The council, once again, abused the concept of executive privilege that is a part of any executive session.

Like I said earlier, this is not the first time this has happened. In fact, it takes place with this council on a regular basis. I’ll get around to explaining my thoughts, my suspicions, on why this happens in a moment, but first I should explain why this episode became the proverbial straw that broke this camel’s back.

The Make-A-Wish Foundation is, to me, one of the all-time great feel-good stories and, boy, in this time in our nation’s history, we really need all the feel-good stories we can get.

Christopher James Greicius, a 7-year-old living in Arizona in the spring of 1980, had always wanted to be a police officer. But, by the spring of 1980, he was also being treated for leukemia. A U.S. Customs officer, Tommy Austin, befriended Chris and collaborated with officers of the Arizona Department of Public Safety on a plan to provide a special day for the youngster. Chris actually spent one day as a police officer. He received a custom-tailored police uniform. He rode in a police helicopter. He was formally, officially sworn in as the very first honorary Public Safety patrolman in the history of the state of Arizona. His wish to become a police officer was realized. Chris died soon after, but this episode became the foundation for the Make-A-Wish Foundation, which, to this day, still has its national headquarters in Phoenix, Ariz. The Make-A-Wish Foundation is a 501(c)(3) non-profit organization that arranges experiences described as "wishes" to children with life-threatening medical conditions.

But back to what happened last night. There’s the other part of this equation as it pertains to us here in Kyle which is, of course, a public park and the word "public" in this sentence can’t be stressed enough. Why is the council’s discussion and ultimately its decision to ask the city manager to enter into an agreement on this subject outside the public’s view? I posed that very question to City Attorney Paige Saenz.

"There are legal issues related to the contract," she told me.

OK. I’ll accept that. I don’t think the "legal issues" or the terms of any proposed contract should be discussed in public, but the overall process the council took to arrive at the decision that was made behind closed doors (the actions they took even though the mayor flatly stated "There was no action taken during executive session’) should be a part of the public discourse. And I know this has happened many times before, but this time the subject is the Make-A-Wish Foundation and a public park in Kyle and I expect citizens would want to know and have the right to know about discussions on those subjects, especially concerning their relationship to each other.

"I can’t speak to all of that," Saenz said. "Let me allow the city manager to respond to that."

So. I posed the same questions to City Manager Scott Sellers, another person for whom I have the utmost respect. In fact, I’ll go on the record as saying in my more than 50 years writing about and being involved in municipal governments around Texas, Scott Sellers is one of the best, if not the best, city administrator I have ever encountered. The City of Kyle has laid a solid foundation for its future and Scott Sellers has provided the leadership, the direction, to make sure this is the case.

But here’s what happened. When I told Sellers that, in my opinion, two subjects the public might be interested in were the Make-A-Wish Foundation and a public park, and then asked why those two subjects had to be discussed outside the public’s view, he said "There’s a contractual agreement with Make-A-Wish that we needed legal advice on."

Look, I’m not asking the city to reveal the actual terms of a potential contractual agreement. They shouldn’t, especially before all sides have agreed to it. But that’s just part of an overall story, the broader picture of which should be a part of the public discussion.

Let me give you an example of what I’m talking about that should be familiar to anyone following the national political scene. Both U.S. House and Senate have committees that have been investigating improprieties that occurred during the 2016 General Election. Some of the inquiries into those improprieties, i.e., some testimony from witnesses, have taken place in closed sessions. But the public has always been informed what the subject matter of those inquiries were going to be along with a general idea of what information the representatives hoped to glean from these closed sessions. Then, after the closed sessions are completed, the representatives have been very open about whether they felt all their concerns were addressed, all the questions were answered to their satisfaction and they provided this information without revealing the details of any classified information they were told behind the closed doors. Not only that, any discussions on whether to recall that witness or to summon additional witnesses based on what was learned in the closed session were always held in open session.

Here, in Kyle, that procedure is abused on a regular basis. As noted above, the council obviously discussed the pros and cons (if there were any) of asking the city manager to enter into negotiations with the Make-A-Wish Foundation and then decided (Was there a formal or even an informal vote on the question? If so, what was the breakdown of that vote? Those details should not be kept secret) that, yes, they wanted Sellers to enter into such negotiations. Such a discussion could be had without revealing any of the actual terms of a proposed contract.

Or could they? That brings me back to the subject I raised earlier, namely my suspicions on why this abuse of executive privilege happens so regularly. The only reason I can think of is this: The city staff just doesn’t trust the council’s ability to have a public discussion on matters such as this without disclosing privileged information. Going back to my example of the congressional committees, it’s important to note that, according to the Social Science Research Council, while 0.6 percent of the U.S. adult population are lawyers, 41 percent of the members of Congress are. But, as far as I can tell, the percentage of those on the Kyle City Council with a law degree hovers right at the zero mark. Kyle City Council members, staff believes, simply don’t possess the expertise to distinguish what can and what can’t be said in a public forum and, instead of providing some kind of training or guidance on these matters, figures it’s easier, it’s safer, to just lock them up outside the public’s view for these types of discussions — the public’s right-to-know be damned.

These thoughts, these suspicions, blossomed because Sellers had no qualms about discussing may of the details of ths subject with me.

"The city is going to partner with Make-A-Wish to fulfill a wish for a young boy here in Kyle," the city manager told me. "His wish is to build an outdoor hockey roller rink. His passion in life is hockey and he lives here in Kyle and there is not outdoor roller rink in the near vicinity. The closest ones are in San Antonio and north Austin. The city had already planned on building a covered pavilion in the budget. We talked about that very publicly. With some modifications we can turn that into a hockey rink but still have it be a public pavilion. But there’s a cost to that. There’s the walls that go around it. So because this is a wish that’s much larger than Make-A-Wish will typically fund, in order for them to feel comfortable moving forward with the wish, they needed a partner. So the agreement that the council just approved stipulates that the city will partner with them on the wish and will assist in the fund raising effort. If we’re not able to generate the necessary funding level that’s above our budgeted level for the project, then we’ll find the funds to stopgap that amount. It is our hope that the citizenry of Kyle and those that are associated with Kyle will recognize this as not only a public amenity but a wish for a young boy and they will feel a need to contribute to the facility."

Look-ee there. Sellers spelled out the entire project to me and nowhere did he reveal any privileged information. Nowhere did he disclose what advice he received from his legal counsel. Nowhere did he reveal the terms of any contract. All he revealed was information about a boy’s wish, the use of budgeted tax dollars (and, yes, the possibility of additional tax dollars) as well as plans for a public fund-raising campaign – all information that not only could have been revealed during public council discussion on this matter but I will argue should have been talked about in public if, for no other reason, than to increase the chances of a successful fund-raising effort. So why was it all done behind closed doors?

"Because we had very legal questions to ask the attorney about the contract because it involves the city budgeting, it involves a commitment to fund for a project that isn’t currently budgeted," the city manager replied.

However, I didn’t ask Sellers to reveal any legal questions that might have been posed and he didn’t volunteer any. And I’m not sure whether a discussion to fund "a project that isn’t currently budgeted" is one for an executive session and not a public discussion. It’s worth noting that after government officials raided the office of President Trump’s attorney Michael Cohen and seized volumes of written and electronic records, Cohen’s attorneys insisted that was all privileged attorney-client information. So the judge in the matter ordered the prosecution to turn over all the information it had seized to a special independent master the judge appointed who would determine what, if any, of the information was privileged. As it turned out, the special master has ruled more than 98 percent of the written material and over 99 percent of the electronic information is not, in fact, privileged information and can be returned to prosecutors. In other words, the legal scope of what can be kept from public consumption seems to be shrinking. So, in lieu of all that, why was this city council discussion held in private again?

"Because we’re not ready to make the public campaign yet," Sellers confessed.

My heavens. That raises an even more horrific option. That means the answers to all these questions may not be A, B or C. There’s a fourth answer, a D option in this multiple choice quiz and that D option is "We simply don’t want the public to know about this yet."

And that, to me, is the most disturbing option of them all.