Attorney: City’s ballot language on independent Austin audit ‘political,’ ‘prejudiced’

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Austin

A group calling for an independent audit of all Austin city departments said it intends to sue the city for passing what it contends is a prejudicial ballot question that would doom such an audit with voters in November.

The release of language preferred by Mayor Steve Adler earlier in the day prompted Bill Aleshire, an attorney for members of the group, Citizens for an Accountable Austin, to send an email letter to City Attorney Anne Morgan.

“Your other versions are obviously political, obviously prejudiced, and misleading by the addition of language that is either unsupported by facts and irrelevant material, going far beyond just presenting a caption of the proposed ordinance,” Aleshire wrote.

Council member Ellen Troxclair repeatedly challenged Adler’s decision to fold the resolution into an omnibus resolution on all of the questions slated for the ballot on November 6, including all of the elements of a $925 million bond issue.

After Troxclair’s fourth request for a separate vote shortly before the meeting adjourned at 12:47 am, Adler told Troxclair such a vote was out of order. The council passed Adler’s ballot language on an 8-3 vote with Troxclair, Ora Houston and Alison Alter opposed.

By adding the audit language to the resolution Adler invited comparisons with the council’s handling of a petition to put the city’s land development code project, CodeNext, on the November ballot. Petitioners sued, the city lost and the city council voted Thursday night to bury six years of work at a cost of more than $8 million.

“The ballot language they drafted for the audit is bogus and illegal,” said Bill Bunch, an attorney and activist, who has opposed council action on CodeNext and the audit. “They are using the ballot language to argue against the audit.”

“You will get sued again and you will lose again,” David King, vice-chairman of one of the city’s citizens planning committees told the council before its vote. “You need to look at efficiency in an unbiased way.

At question was Adler’s insistence that the ballot question point out to voters that “Without using the existing internal city auditor or existing independent external auditor, shall the city code be amended to require an efficiency study of the city’s operational and fiscal performance performed by a third-party audit consultant, at an estimated cost of $1-$5 million.”

Citizens for an Accountable Austin preferred, and Troxclair supported, a question that said, “Shall a city ordinance be adopted requiring a comprehensive, independent, third-party audit of all city operations and budget?”

Michael Searle, whose petition drive gathered more than 30,000 signatures and was certified for ballot consideration by the council last week, said the mayor’s language biases a voter about the need for an independent audit and its cost.

Searle also objected to including a cost estimate for audit in the ballot language. At the least, he said, the question should then include what Searle has estimated would be savings to the city of between $156 million and $390 million a year in efficiencies identified in an audit.

Polling has shown that 82 percent of Austin residents, when asked in simple language, said they favored an efficiency audit, Searle said.

“You’re using ballot language as political advertising,” Searle told the council early Friday morning.

Ed English, a proponent of a citywide audit since 2014 who has served as an advisor to the group, called the ballot language “outrageous” and “clearly and obviously designed to mislead a voter.”

“It’s fairly safe to say that we’ve sought legal counsel and I have no problem taking legal action on this language,” English told the council.

The city of Austin has always used an independent external auditor, but only on accounting questions of a focused scope. The city created its own auditor department in 1991, designed to be independent of the city manager and staff and accountable to the city council, but paid for by the city.

Never in 27 years has a city council asked for an audit of 30 city departments and the two utilities, City Auditor Corrie Stokes told The Texas Monitor in an interview earlier in the week.

Stokes, who has spent her nearly 20-year career in the auditor’s office, the last three as head of the department, said “If the citizens want an audit, perhaps there should be an audit.”

While her office might be capable of doing such an audit its purview, historically, has been audits of specific departments or problems, Stokes said. The department performs 18 to 20 audits a year and every year creates a list of 12 to 15 that need attention, she said.

The last major review of a single department, Planning and Zoning, was completed in 2015 by an independent external auditor, Zucker Systems, at a cost of $250,000. The report — highly critical of the department and still controversial — is 814 pages long.

The Zucker Report has Stokes concerned that trying to do the same thorough review of all city departments might be asking a lot.

“It seem like a very broad task, seems like it would be very challenging. It’s not something we’ve ever been asked to do,” Stokes said. “But there’s also something to be said for someone outside giving it a fresh look.”

The circumstances that led to the threat of a lawsuit make it nearly impossible for a fresh look not to be colored by politics. Before the vote was cast, Adler asked Searle to reveal the names of the donors who provided $137,000 for Searle’s political action committee to conduct the petition drive. Searle, under no legal obligation to do so, declined.

Several council members expressed concerns about a lack of transparency in Searle’s funding. A citizen, David Butts, told the council that lack of transparency was by design, “a spear directed at this city, by people who don’t like this city.”

Butts said he welcomed the opportunity for a community-wide debate on the ballot question, to expose what he identified as the politically conservative backers of the audit.

Butts has been for at least 20 years one of the most frequently called upon political advisors, lobbyists and donors for progressive political candidates.

Butts was instrumental in Adler’s first mayoral campaign in 2014. He has advised for the campaigns of at least half of the city council, Greg Casar, Ora Houston, Ann Kitchen and Leslie Pool.

A two-page ad taken out by political opponents during the 2014 municipal election campaign referred to Butts as “The Invisible Man,” controlling the city council behind the scenes.

A longtime ally and donor to her campaigns, Butts teamed up with Kitchen in 2016 to help defeat Proposition 1, the ballot question that drove ridesharing companies Uber and Lyft out of Austin.

Houston challenged her old advisor, saying residents on her district could benefit greatly from the millions that might be saved through an efficiency review. Who funded the petition, she said, was beside the point.

“Are we saying the petitions are invalid?,” Houston asked Butts. “Are we saying the people who signed those petitions are invalid? Is there something wrong with an efficiency audit?”

Mark Lisheron can be reached at [email protected].

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