Texas Supreme Court to Austin: Respond to claims of ‘unlawful’ ballot language

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The Texas Supreme Court has given the city of Austin until Thursday to respond to a lawsuit filed with the court contending the mayor and city council approved “unlawful and misleading” ballot language for a citywide efficiency audit.

Court Clerk Blake Hawthorne informed the city shortly after attorney Bill Aleshire asked the court to grant his client, Ed English, an order to force the council to reconsider a Nov. 6 ballot question Aleshire says violates Austin’s city charter.

Aleshire appealed directly to the Supreme Court to speed things along because the city clerk has until Sept. 7 to finalize all language to appear on the Nov. 6 ballot.

English is an advisor to Citizens for an Accountable Austin, which produced a certified petition asking that voters consider approving the hiring of an independent auditor to review all city departments, including the utilities.

Rather than approve a straightforward ballot question, Mayor Steve Adler and a city council majority early Friday morning approved this language:

“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 consultant, at an estimated cost of $1-$5 million?”

That ballot question, Aleshire says in his request for a writ, “violates the Austin city charter and, regardless, is prejudicial and misleading political commentary on the proposed ordinance, not language that merely identifies the measure’s chief features, character, and purpose.”

“I believe the actions of this mayor and council majority demonstrates their rock-solid disrespect for the people’s right of petition for initiative,” Aleshire told The Texas Monitor in an email.

The council vote on the audit followed a contentious challenge from council member Ellen Troxclair whose requests to have the language voted on separately from all of the other resolutions slated for November were repeatedly rejected by Adler.

The rancor was fueled by citizen speakers critical of a lawsuit filed against the city when the council refused to put a question concerning CodeNext, the city’s land development code revision on the ballot.

The court ruled against the city, but the council, at the urging of Adler, voted to halt work on CodeNext, most likely until early next year, months after the November vote.

The ballot question favored by Citizens for an Accountable Austin and proposed by Troxclair read:

“Shall a city ordinance be adopted requiring a comprehensive, independent, third-party audit of all city operations and budget?”

That language is consistent with the mission statement at the top of the petitions the group began circulating in May, Aleshire wrote to the Supreme Court. “The city’s efficiency study will provide an impartial, objective review of the city’s operational and fiscal performance.”

The city clerk certified more than 30,000 signatures earlier this month. The city council had the option of considering an efficiency study by its vote or, as it decided Friday morning, to leave the decision to the voters in the general election.

In addition to violating section five of the Austin City Charter Article IV, Aleshire said references to the city auditor and an “existing” external auditor paid by the city in the ballot question cast doubt on the need for an independent audit.

City Auditor Corrie Stokes told The Texas Monitor last week she had no objection to such an audit. The auditor’s office had never done an audit like it in its 27 years in existence, nor had any city council asked for a comprehensive review of all city departments. (Aleshire includes the text of this story, Appendix Item I, on page 48 of the appeal.)

Aleshire’s suit also challenges the inclusion of a $1 million to $5 million cost to do an efficiency audit. Michael Searle, treasurer for Citizens for an Accountable Austin, has said he estimates the cost of the audit at $1 million to $2 million.

He has also said studies of audits done by other local and state governmental bodies found hundreds of millions of dollars in potential cost savings, something not mentioned in the ballot language.

English “contends that there is no valid way for anyone to calculate the net cost of such an efficiency audit to such a certainty that it should be included in the ballot language,” Aleshire wrote. “It’s just as possible that the audit might produce more savings than the consultant’s fee (which might even be a contingent fee) and result in a positive gain for taxpayers.”

Mark Lisheron can be reached at [email protected].


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