The city manager sent me a memo from Stan Lowry, City Attorney this morning:

MEMORANDUM

TO: Dan O’Leary, City Manager
City of Keller

FROM: Stan Lowry
Boyle & Lowry, L.L.P.
Leroy Grawunder, Jr.
McCall, Parkhurst & Horton L.L.P.

DATE: March 29, 2010

SUBJECT: Application of Charter Section 7.03 to General Obligation Refunding Bonds

The City of Keller (the “City”) is preparing to issue general obligation refunding bonds to refinance portions of its outstanding Combination Tax and Tax Increment Reinvestment Zone Revenue Certificates of Obligation, Series 2000, and Combination Tax and Tax Increment Reinvestment Zone Revenue Certificates of Obligation, Series 2001.

You have informed us that a citizen has notified you that he is planning to submit a petition pursuant to the City’s’ home rule charter to require a referendum election on the ordinance authorizing the proposed refunding bonds, and have asked what would be the effect of such petition on the issuance of the bonds. Section 7.03 of the City’s home rule charter provides that any ordinance passed by the City Council is subject to referendum if a petition, meeting the requirements of the charter, is filed.

The proposed refunding bonds would be issued pursuant to Chapter 1207, Texas Government Code. Section 1207.003, Texas Government Code (“Section1207.003″), provides that refunding bonds may be issued without an election, unless an election is required by the Texas Constitution. We are not aware of any constitutional provision that would require a municipality to hold an election with regard to the issuance of general obligation refunding bonds.

It is a recognized principal [sic] of Texas law that if there is a conflict between State law and a home rule charter provision, State law prevails. Section 1207.003 specifically authorizes a governing body to issue refunding bonds without holding an election. A home rule charter provision that requires, upon the filing of a petition, a referendum election on the ordinance authorizing the refunding bonds contradicts the authority granted by Section 1207.003, and therefore such ordinance would not be subject to the referendum requirement of Section 7.03 of the charter.

State law requires the refunding bonds to be submitted to the Texas Attorney General for review and approval. We have contacted the Public Finance Division of the Attorney General’s office to determine if they agree with our analysis and will let you know if they agree or not.

Please contact us if you have any questions regarding the above, or if we may be of further assistance.

Wow.

First, Texas courts have ruled repeatedly that the power of referendum is reserved, not granted, to the people. As such, its provisions must be liberally construed in favor of the reservation [of the power of referendum].

Second, courts have ruled that the power of petition can be “limited…through either express directive or by implication. Quick v. City of Austin, 7 S.W.3d at 124. And, before it can arise through implication, the provisions must evince a clear and compelling intent to limit the power.”

Let me stop here and ask two important questions:

1. Where in Section 1207.003 of the Texas Code does Mr. Lowry find a clear and compelling intent to limit the power of referendum?
2. Whom does Mr. Lowry represent?

The answer to question #1 is left to the informed reader. The answer to question #2 is found in the City Charter:

Section 5.04. City attorney.
The city council shall appoint a competent and duly licensed attorney practicing law in Tarrant County, Texas, who shall be the city attorney. He shall receive for his services such compensation as may be fixed by the city council and shall hold his office at the pleasure of the city council. The city attorney, or such other attorneys selected by him with the approval of the city council, shall represent the city in all litigation. He shall be the legal advisory for, and attorney and counsel for, the city and all departments thereof.

So the City Attorney represents the City. And that includes us. Page vi of the Keller Budget lays out an organizational chart that puts The People of Keller at the top. So whom does he represent when there is a conflict between the city council and the people they represent? History says he represents the council every time, and sometimes represents the city manager against the people and the council.

Here are some lowlights of Mr. Lowry’s tenure with Keller:

• Failed for ten consecutive years to recognize a blatant charter violation with the city manager’s contract.
• Failed to timely disclose pending lawsuits against the city to the city council.
• Allowed the threatened exercise of sovereign immunity in response to potential litigants without the council’s knowledge.
• Held at least one secret meeting with the city council without justification (consideration of animal control petition.)
• The above memo

Mr. Lowry’s argument is without merit, and it’s time for his tenure to end.

This blog has been resurrected, remodeled and renamed, at least temporarily, to take advantage of a rare opportunity.

How many times in the last few years have you anguished over government excess? And how many times were you able to do something about it? To rapidly effect real change?

Sadly, there’s little we can do about Washington or Austin. And due to our omnibus budgeting process, it’s usually impossible to limit Keller’s excesses, too.

The following letter to the editor of the Keller Citizen should appear in next week’s paper, to be followed the next week with a quarter-page ad displaying the same a week later:

A year ago the city council, facing declining revenue, nonetheless directed the city manager to lay off NO city staff under any circumstances. In the year since, the circumstances have only worsened.

Development in Keller has slowed dramatically (more than 50%) but the Community Development Department is still fully staffed.

Now the council is planning to issue new debt to cover its budget shortfall. It will cost taxpayers an additional $2.7 million. Council members have flatly refused repeated pleas to even consider budget cuts instead.

We now have a rare opportunity to take a firm stand against wasteful spending. We can overturn the council’s decision and take away their credit card by filing a petition of referendum. We need only about 500 signatures, but we firmly believe we can get many more.

If you’d like to help in this effort, with time or money, please contact us. Signatures will need to be gathered April 7th through May 5th. Read more at www.kellercitylimits.com or beyondrightfield.wordpress.com.

Jim Carson, Keller City Councilman 2006-2008
jim@kellercitylimits.com
817.874.7755

Doug Miller, Planning and Zoning Commissioner
doug@kellercitylimits.com
214.215.0870

In January I lost my son-in-law and granddaughter to a drunk driver, the toughest thing I have ever had to endure.  My granddaughter was our little angel and one couldn’t have asked for a better son-in-law.  We are all still in shock over our loss and it remains hard to even think about it.  My daughter is doing better and has moved into her own apartment and even though she and I don’t talk often, she seems to be doing as well as can be expected.

In May, my son came home from college and told me he was done with baseball.  On one hand I was relieved, on the other I was crushed.  So much of our lives have revolved around the sport since he was 4 years old.  He took a break and didn’t go back to school this semester, and I hope he gets his act together and gets back into school in the spring.  I love my son with all my heart, its just that he’s 20 years old and sees that love as something destructive rather than something positive.

In July, I lost my longtime companion Cutter.  He was actually Shannon’s dog, but I inherited him when she and I got married.  I miss sitting on the couch watching TV with him sitting beside me, and still every day I still look over to where his food bowl was on the way out the door.  I can’t bring myself to get another pet, Cutter was a special dog.  My dad, who doesn’t like pets even stated that Cutter was the best dog he’s ever been around.

In October it seems we lost our economy and the stock market crashed with fury not seen since 1929.  It didn’t affect our business until the last few weeks, but we are seeing the writing on the wall.  At the peak this summer we had over 100 employees and are now down to our core group of 30 trying to weather the storm.  I try to stay as upbeat as I can because I am the face for the company with our customers, and the last thing we need is pessimism creeping throughout the company. 

And now in December, we are losing this blog.  Jim has decided to end all new publications on KCL as it has taken a direction that he didn’t like.  I knew this day would come, but didn’t expect it quite so soon.  I will continue to blog, but at Beyond Right Field, a site I set up last summer.  If you have enjoyed my postings here, please add a bookmark to your favorites on your browser. 

As a way not to end this on such a drag, let me state that this year has also been one of the best ever.  My wife and I are happier than we have ever been, my step-daughter walked across the stage at Sam Houston State University last weekend with her degree, my nine year old is as happy and vibrant as ever. 

Shannon and I are truly blessed and wish to take this moment and wish everybody a Merry Christmas. 

Stop by their site and offer your help if you can this Holiday Season.

UPDATE:  My brother’s Chicago Sun Times Column on the subject.

A Keller family displaced from their flooded home will have a new home built for them this week by crews from the television show “Extreme Makeover: Home Edition” and Arlington-based Wall Homes.

Amber and Peter Augustin of Keller were told Monday morning that they would have their Keller Hicks Road home rebuilt for them this week and featured on the ABC show, according to a statement from the show.

In addition to construction crews from Wall Homes and “Extreme Makeover: Home Edition,” hundreds of volunteers will descend on the property this week to build the home in 106 hours.

The Augustins’ home flooded in June 2007. They removed the rotten walls, but the family of five had to leave the home. City and county officials have told the family that the home must be raised one foot to be habitable.

UPDATE:  Actually read the press release and after looking on Google, the house in question is on Keller-Hicks road in Fort Worth, not Keller.  The house also backs up to the KISD Property that I talked about in this post.