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Blueprint for Good Governance: Review Your City Charter

A City Charter establishes a town and sets up the municipality’s form of government. In a sense, a City Charter can be thought of as a town’s constitution. So what happens when the city charter is unclear, or even worse, the Mayor or Council fail to uphold the rules of the Charter?

The City of Austin is currently facing a lawsuit brought by Texas Attorney General Ken Paxton over this very issue. Austin’s City Charter states that no more than 1/3 of the members of Austin’s Planning Commission can be “directly or indirectly” connected to land use or real estate. The commission is made up of 13 members and, according to Attorney General Ken Paxton, 8 of the members are connected to development and real estate. The commission currently hosts four architects, two land use engineers, the Director of Operations for a housing non-profit, and an Austin area lawyer who specializes in real estate law. The issue was brought to city council’s attention in November 2015, but the city has yet to do anything about it.

This situation should have been avoided before it materialized into a real problem. The city should have reviewed the Charter prior to appointing each of these members to the Commission. Even worse, once these members were appointed and the charter violated, the City Council claimed that the City Charter is silent as to how and under what circumstances commissioners can be removed from the commission. Even though these members shouldn’t have been appointed, the City of Austin claims that there’s no way to have them removed.

In May of 2018, after determining there’s no existing method for removing the current commissioners, the city council asked the city manager to draft a procedure for dealing with this problem in the future. Unfortunately, that does nothing to resolve their current state of affairs. Austin citizens have complained to city officials, the county attorney, district attorney and, finally, a group of local attorneys filed a complaint with the Texas Attorney General’s office.

The Attorney General has now filed a lawsuit against each of the 8 commissioners who are allegedly involved either directly or indirectly in real estate matters. While the City of Austin is not directly being sued by the Attorney General, the city, and in turn the taxpayers, will be footing the bill for the defense of these commissioners who were unlawfully appointed. The whole situation reflects poorly on Austin city officials. Either they were unaware of the Charter’s guidelines or completely disregarded the rules when appointing members to the Planning Commission.

The real problem is that these members never should have been appointed to the commission in the first place. Compounding the problem is the fact that council can’t figure out a way to remove these members under the charter.

There are simple steps a city can take to avoid this type of embarrassment and unnecessary expense. First, know what’s in your Charter and abide by it. Second, listen to the citizens. If citizens complain about a fundamental problem, don’t ignore it and let it morph into a litigious matter. Conversely, if you’re a citizen of a city that isn’t following their own rules, make yourself heard, just as the citizens of Austin did here.

Finally, cities would be wise to perform a review of their Charter and ordinances from time to time. As new ordinances are passed, this helps to prevent conflicting rules. It can also shed light on problems such as the inability to remove commissioners wrongly appointed, before they turn into lawsuits.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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