Austin city being sued on ballot issues, misleading voters attorney claims

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The summer sun sets on Austin, TX on a humid August evening.

The city of Austin is being sued for the second time this week by the same attorney contending the city council has approved language crafted to mislead voters on two major November ballot issues: an efficiency audit of city departments and a rewriting of the city’s land development code.

In both lawsuits, attorney Bill Aleshire appealed directly to the Texas Supreme Court in an attempt to force the city council to reconsider the language in both ballot questions before the legal deadline for finalizing the language on Sept. 7.

On Friday afternoon, Aleshire appealed for a writ of mandamus from the state’s high court, saying the city council “fiddled with the wording to discourage interest and support in the proposition,” to give voters the authority to approve a land development code.

The “fiddling occurred” after the council voted unanimously Aug. 9 to halt work on CodeNext, a rewrite of the city’s 35-year old land development code. After six years and more than $8 million, most of it cost overruns, a CodeNext team produced a document of more than 1,500 pages that made almost no one in the city happy.

See petition for mandamus here.

The council agreed with Mayor Steve Adler’s suggestion that any future work on the land development code is under the direction of City Manager Spencer Cronk. Cronk told the council at the Aug. 9 meeting it was likely no such work would begin before the beginning of 2019.

After having burned the brand CodeNext into the minds of voters, the city council chose to remove any mention of CodeNext in the text of a question the council was forced to include on the Nov. 6 because the city was sued.

Instead, the question, which will appear as Proposition J asks, “Shall a city ordinance be adopted to require both a waiting period and subsequent voter approval period, a total of up to three years, before future comprehensive revisions of the city’s land development code become effective?”

The suit was filed on behalf of Allan McMurtry, one of the 31,062 people who signed a petition certified by the city clerk in April asking for a vote on CodeNext. The city council neither took a direct vote on the question nor approved putting it on the ballot.

Opponents sued in Travis County District Court, contending that the council violated Austin’s city charter by blocking a citywide vote on a verified petition. The court granted a writ of mandamus on July 16, forcing the council to reconsider.

“First, [Mayor Steve Adler] council refused to respect the voters’ right to have their proposition placed on the ballot at all,” Aleshire said in an email to The Texas Monitor. “A court ordered them to follow the charter. We’ve now asked the Supreme Court to order the council to follow the charter and fix the unlawful ballot language the council adopted.”

Bill Bunch, director of the Save Our Springs Alliance and one of Code Next’s staunchest opponents, lambasted the council at its Aug. 9 meeting for “rigging the ordinance.”

“You’ve been talking all night about CodeNext and about the need to restore public trust with your amendment,” Bunch said. “One of the ways you could do that is by meeting your ministerial obligation to follow the city charter on this ballot language.”  

This latest suit comes days after Aleshire filed suit on behalf of an advisor for Citizens for an Accountable Austin, a political action committee, that won certification for a petition asking that the city do an independent audit of all city departments, including the city’s two utilities.

Aleshire had sent a letter to City Attorney Anne Morgan warning the council not to approve ballot language that was “obviously political, obviously prejudiced, and misleading by the addition of language that is either unsupported by facts and irrelevant material.”

Rather than a question that reflected the language of the petition that got more than 33,000 signatures, “Shall a city ordinance be adopted requiring a comprehensive, independent, third-party audit of all city operations and budget,” the council, at Adler’s insistence, approved this:

“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.”

The suit, filed on behalf of Ed English, an advisor and one of the petitioners, contends that the language would lead voters to believe the audit was unnecessary and expensive. Such misleading language is in violation of the city charter, the suit contends.

The Supreme Court gave the council until Thursday to respond to Aleshire’s appeal for the writ on the English lawsuit. The city’s attorneys the document at 10:51 pm Thursday.

See the city’s mandamus response here.

“Mr. English argues that he is entitled to mandamus relief because the council-adopted Proposition K ballot language violates ministerial duties separately imposed on the council by the Austin city charter and common law,” the reply says. “He is wrong on both counts. None of the wording of the proposition is deceptive, prejudicial, or without factual foundation. The real complaint is that the proposition language for the measure gives more information about it than Mr. English wants voters to have.”

In defense of the city council’s handling of English’s suit, city attorneys cite Article IV, Section 5 of the city charter that instructs elected officials that “The ballot used in voting upon an initiated or referred ordinance shall state the caption of the ordinance.”

The council chose not to “state the caption,” when it left out CodeNext in the language for which it is being sued.

In it’s reply to the court, the city contends the Citizens for an Accountable Austin petition did not have a caption. “This took the council’s actions outside the purview of the city charter,” according to the reply.

Mark Lisheron can be reached at [email protected]

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