City Council Violates State Law
By Will Johnson
CROCKETT – It didn’t take long for the Crockett City Council meeting to take an ugly turn on Monday, Aug. 13. At issue was the fate of the Crockett Economic and Industrial Development Corporation (CEIDC).
In recent weeks, a petition had been circulated concerning the placement of a referendum on the upcoming election ballot in regard to the dissolution of the CEIDC.
When the council addressed the matter, near the end of the Monday night meeting, tempers flared, voices were raised, gallery members became unhinged and the Crockett City Council violated state law. Mayor Pro Tem Mike Marsh was not in attendance.
Mayor Joni Clonts read the agenda item which stated, “Consider and approve a resolution for an election on the termination of the existence of the CEIDC for the city of Crockett.”
A hush fell over the council chamber before City Administrator John Angerstein said the above referenced petition had been submitted “… late last week.”
“It took us several days for us to go through the signatures and make sure they are registered voters in the city of Crockett. The end result was 373 signatures were certified. The 10 percent margin for a petition was 361,” Angerstein said.
Angerstein was referencing Texas Local Government Code Section 504.351 – Election to Terminate Existence of Corporation on Petition.
The code states: (a) On petition of 10 percent or more of the registered voters of an authorizing municipality requesting an election on the termination of the existence of the Type A corporation, the governing body of the municipality shall order an election on the issue. (b) The authorizing municipality shall hold the election on the next available uniform election date that occurs after the time required by Section 3.005, Election Code.
After Angerstein concluded, Precinct Three Councilman Ernest Jackson addressed the council and the standing room only crowd in the council chambers.
“I would like to open up by saying that one, I respect the rule of law and we are elected officials called forth by this community to serve here in these seats where we now sit. I respect the right of the people to petition government on whatever needs or changes they feel necessary,” he said.
Jackson said while he loved the city of Crockett and respected the opinion of the municipality’s residents, he had a problem with the city charter.
“In this charter currently, there are no provisions in it for initiative, for referendum or recall. These are inherent home rule powers. We are a home rule city. What that means is the citizens decided they didn’t want to be a general law city,” he said.
According to USLegal.com, “A general law city is a municipality that is limited to governmental structures and powers specifically granted by state law. Home rule cities are those cities which have adopted a home rule charter for their local self-governance. The home rule city can take any actions which are not prohibited by the state or federal laws and the constitution of US and Texas.”
Jackson said an unnamed person who helped revise city charters had pointed out 31 deficiencies in the current city charter including the lack of a provision concerning initiatives, referendums or recalls.
“If I believe in the rule of law, then I can’t accept this petition. This council can’t accept it because we are working outside of this municipal constitution before any of ever got here,” the councilman said.
It should be noted, a charter revision had been approved and budgeted for in FY 2018, but when it came time to discuss appointing a citizens’ charter review committee, Jackson along with council members Marquita Beasley and Darrell Jackson, voted the measure down, citing the need to prioritize street repair.
“If we are going to act as a council elected by the people – if it were in this charter – we would not be having this conversation. It is not there. I have done my research,” he said.
“Also,” he continued, “Initiative – this comes from the Texas Municipal League – Initiative, referendum, and recall are inherent home rule powers that are reserved for exclusive use by local voters in order to provide direct remedies in unusual situations. There is no constitutional or statutory authority for initiative, referendum, or recall. These powers are unique to home rule cities, and they are not available to voters at any other level of government, including the state.”
Jackson said as much as he would like to bring this before the people, he felt he could not do it.
“This charter under which we now function is akin to a municipal constitution that governs what this city does and cannot do. It is incumbent on us to follow law and not the whims of the citizens. I’m not – and neither is this council – an obstructionist of the rights of the people. We’re not – even though our faces are black. We are not obstructionists. We will follow the law. In the past, councils who previously served have amended and did other things and may have even listened to the voice of the people, but it was not in the constitution do so. This charter that we now function under does not have provisions for this petition. Consequently, we cannot accept it,” he said.
Once he concluded, Councilman Butch Calvert said being a home rule city “… doesn’t mean that we can ignore laws that were passed in Austin. State laws trump local ordinances everyday just as federal law trumps state law.”
“We as a city,” Calvert continued, “can make laws that affect just us but none of those laws are in contradiction to those that are passed in Austin or Washington.”
“Let me remind you, Mr. Calvert, I have already researched this,” Jackson said.
“So have I,” Calvert replied.
“TML – I’m going to read it to you again…” Jackson began.
“I heard it the first time, Mr. Jackson,” Calvert said.
After re-reading the TML paragraph, the mayor commented, she also had contacted the TML and was informed “…if presented with a valid petition, city council must call an election.”
She added, “This is from (City Attorney) Bill Pemberton. The Texas Local Government Code requires the city council to order an election on the issue of the termination of the type A Economic Development Corporation after being presented with a petition signed by 10 percent or more of the registered voters of the city. That section also requires the election to be held on the next uniform election date that occurs after the required date by the Texas Election Code Section 3.005.”
Calvert added, “The Secretary of State runs all of the elections in the state of Texas. The Secretary of State said if you are presented with a legal petition, the city shall hold an election. Not the city may hold an election or the city may consider an election, but the city shall hold an election.”
“If we do not pass this,” Calvert explained, “we are in violation of the laws of the state of Texas and we will get sued.”
After several moments of confusion about could or could not be in a motion, Calvert made a motion to approve the measure to call for an election concerning the fate of the CEIDC.
“If the city doesn’t authorize the election to go before the voters, we are refusing the citizens the right to vote. We have no choice once the petition is presented and certified with greater than 10 percent of voters’ signatures. Tonight’s decision is not an opinion on the CEIDC, but it is the law,” Clonts said.
After waiting several seconds, Angerstein said. “Because there is not a second, the item fails for lack of a second.”
“So, anyone that signed the petition can go and sue the city. Go see (District Attorney) Donna Kaspar,” Clonts said. “This meeting is now adjourned.”
You have been divisive ever since you got here,” Jackson said to the mayor.
“I have not. I’m just trying to do what is best for the city,” Clonts replied.
A call to the Secretary of State was placed the following day and it was confirmed the referendum is independent of the city’s charter. In other words, the petition is legal and the referendum will be placed on the ballot.
According to Krystine N. Ramon, Staff Attorney in the Elections Division the Office of the Texas Secretary of State, “Since this petition was to terminate an existence of the Crockett development and economic district which is created by State law this is not a referendum or a recall election under a city charter. Therefore, under Section 504.351 of the Local Government Code, if the petition was signed by 10 percent of the registered voters than the city council shall order an election. The reading of shall would mean that the city would have to order the election to terminate an existence of the Crockett development and economic district.”
Calvert also confirmed this on Tuesday. He stated he had discussed the matter with Angerstein who informed him nothing in the charter has any relevance to the petition.
“The Secretary of State told him (Angerstein) they were not aware of this happening in the past – of a city council flaunting state law and refusing to order the election when a legal petition was submitted. The recourse is for any eligible voter to file a complaint against the city in District Court,” Calvert said.
The petition would go in front of either District Judge Pam Foster Fletcher or District Judge Mark Calhoon “… and the judge can order the election, superseding anything the council did. If the judge orders the election, the election happens,” Calvert explained.
He indicated he had filed a complaint with the Houston County District Clerk on Tuesday morning, Aug. 14.
“I know this conversation was kicked off by a letter to the editor I wrote a few weeks ago. At that point, I let it go. I didn’t sign the petition. I didn’t solicit any signatures for the petition. I left it in the hands of the voters. If it was something they wanted to run with, so be it and if they didn’t, that was fine, too,” Calvert said.
“The way this issue has gotten blown into a black versus white issue, I don’t see it. My position has always been this has never been about one man or the color of anyone’s skin. It has been about the right of the people to choose,” he said.
On the previous night’s city council meeting, Calvert said it was “… embarrassing and it angered me that the council did what they did last night, to say they were above state law.”
Will Johnson may be contacted via e-mail at email@example.com.