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Min 03/09/2009 541 CITY COUNCIL MINUTES Wichita Falls, Texas Memorial Auditorium Building March 9, 2009 Item 1 The City Council of the City of Wichita Falls, Texas met in special session on the above date in the Council Chambers of the Memorial Auditorium Building at 8:30 o'clock a.m., with the following members present. Lanham Lyne - Mayor Charles Elmore - Mayor Pro Tern Glenn Barham - Councilors Michael Smith - Dorothy Roberts-Burns - Rick Hatcher - Jim Ginnings - Darron Leiker - City Manager Julia Vasquez - Acting City Attorney Lydia Ozuna - City Clerk Mayor Lyne called the meeting to order. Item 2a Mayor Lanham Lyne gave the invocation. Item 2b Mayor Lanham Lyne led in the Pledge of Allegiance. Item 3 ORDINANCE NO. 22-2009 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AMENDING ORDINANCE 16-2009, IN ORDER THAT PROPOSITION NO. 1 BE REWORDED; AND IN ORDER THAT AN ADDITIONAL PROPOSED AMENDMENT TO THE CITY CHARTER BE SUBMITTED TO THE VOTERS DURING SAID ELECTION; FURTHER, SETTING FORTH THE ADDITIONAL PROPOSED AMENDMENT AND PRESCRIBING THE FORM OF THE PROPOSITION; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Moved by Councilor Ginnings that Ordinance No. 18-2009 be passed. Motion seconded by Councilor Hatcher. Dr. Ranette Halverson, 6 White Oak Court, informed that she served on the 2006 Charter Review Committee that recommended changing election by plurality to election by majority. She gave reasons for their recommendation and the research the Committee had done. She stated that the voters had already expressed their preference pf election by majority at the polls in 2006. She asked 542 Item 3 continued Council why they believe the citizens of Wichita Falls have changed their minds in two years. Acting City Attorney commented that at their February 17 meeting, Council voted to approve this proposition to be placed on the ballot, as well as the one dealing with the City Clerk. This ordinance is to basically to do two things — 1) amend the proposition language that inadvertently included the old language on a runoff, and 2) to delete Section 21 a which would not be necessary if the plurality process is voted back in. The Charter amendment has already been voted on to go on the ballot; this ordinance is merely to make those corrections. Councilor Barham asked if this provision is defeated were they still going to vote on the Charter, the previous question. He reads it as being all of it not just the revisions to Section 21 and 21 a. He is reading the language for Sections 21 and 21 a in his mind they are voting on that Section again like they voted on the referendum again last Tuesday. She concurred. Larry Lambert, 1609 Burlington, informed that he was the Chair of the 2006 Charter Review Committee. He stated that what he wanted to say was already said by Dr. Halverson. You have an issue that has already been voted by the citizens of Wichita Falls. The voters vote to do away with plurality and to vote by majority. He asked that they resend their vote of February 17 and allow the current election by majority to remain in place. Consider the following: 1) It was correctly done the first time in 2006 2) it was approved by this council and bye voters, and 3) majority is the normal way to elect people and we thought at that time it was the proper way to go. He elaborated on the reasons for his statement. He requested that Council remove and refrain from placing this on the May 9 ballot. It was voted on three years ago and voters voted on this and it passed. Acting City Attorney explained that this ordinance is to clarify the language in the proposition by doing two things —first, it would amend Sec. 21 to remove runoff language that was inadvertently left in the wording when this proposition was approved by Council to be placed on the May 9, 2009 ballot. Second, this ordinance would delete Section 21 a of the City Charter if voters approve election by plurality. Moved by Councilor Barham that proposed ordinance be amended to include Section 21 and 21 a of the City Charter for another vote, if the case is that we are not voting on Section 21. As I read it in the "be it ordained" portion of the agenda item in my mind we are voting on it a second time. I may be wrong but if I am I want to make the motion to vote on it a second time. Motion seconded by Councilor Roberts-Burns. Acting City Attorney asked if he wanted to make a motion to vote on the plurality proposition. Mayor stated that Councilor Barham wanted to amend to put all the language back so that in essence it will be a revote. Councilor Barham concurred. Acting City Attorney approved the motion. There was confusion as to how the motion should read and what was actually taking place. City Manager stated that the nature of not changing Proposition 1 to delete that language we are talking about here today would in a sense conflict. In my mind if you chose not to approve this it would essentially make it hard to say we have switched from majority to plurality because you have two sections that basically conflict with each other. In a sense if you take the vote here as it is written today you are deciding whether or not to approve plurality election versus majority election. Councilor Elmore asked if it would still be on the ballot in its incorrect form. City Manager replied that that is the question but if it does go on the ballot and is approved it is going to be difficult because you have conflicting language 543 r Item 3 continued and someone could challenge that in the future if you had an election and if it was not decided by majority or runoff vote. There was concern and uncertainty as to how and if the amendment should be worded and acted on as well as to the results of any action taken. After lengthy discussion, Mayor stated that because this was in conflict with itself if we amend it, he wants Legal to review this and make sure that this is done properly. Mayor stated that the City Council will go into executive session while Legal reviews this issue. Item 5 City Council went into Executive Session at 9:15 a.m. and reconvened at 9:50 a.m. Mayor announced that no votes or poles were taken during Executive Session. Mayor stated that they would continue with Item 3 and asked the Acting City Attorney to report their findings. Acting City Attorney said they had the worked it out but she did not have that wording. Miles Risley introduced himself as possibly the next City Attorney. He stated that Councilor Barham is trying to rescind the previous Section 1. Councilor Barham concurred. Mr. Risley informed that it is within the Open Meetings authority to amend any part of that Proposition. The power to amend is the power to destroy. It appears, on the surface without having looked at any case law, that because it is within the scope of Open Meetings Notice to effectively destroy Proposition No. 1 that you may do so by replacing Section 1 if you wish with the wording "Ordinance No. 16-2009 is hereby amended to provide that Measure No. 1 shall be considered deleted from the proposed amendment to the City Charter to be submitted to the voters during the General Special Municipal Election to be held on May 9, 2009"; and then deleting the rest of that Section 1 of the ordinance. Section 2 would then be modified, if Council wishes to delete it, to say that the proposed Measure to amend the Charter of the City of Wichita Falls shall be considered deleted with respect to Proposition No. 1 and the ballot shall be amended to reflect the deletion of Proposition No. 1. Councilor Elmore asked if that motion fails would Council vote on the original proposed ordinance. Mayor replied in the affirmative. Mayor asked Councilor Barham if the amendment was acceptable to him since he made the motion. Councilor Barham accepted the amendment. Councilor Roberts-Burns, having made the second to Councilor Barham's motion, also agreed. Mayor clarified that if you vote in favor of the amendment it pulls Proposition No. 1 off the ballot. If the amendment passes then you would vote on the motion as amended. If the amendment fails, you would vote on the original motion which would correct the language in Proposition 1 and delete Section 21 a. City Manager stated that the amendment requires a 4-3 vote, but the original motion would take a 5-2 vote. Mayor asked that the proposed amendment be read again. Mr. Risley stated that it would amend the Ordinance for Section No 1 to read: "Ordinance No. 16-2009 is hereby amended to provide that Measure No. 1 shall be considered deleted from the proposed amendment to the City Charter to be submitted to the voters during the General Special Municipal Election to be 544 Item 3 continued held on May 9, 2009"; with the rest of that section deleted. Section 2 would then read "Proposition No. 1 shall be considered deleted and the ballot shall be amended to reflect the deletion of said Proposition No. 1.", with the rest of Section 2 deleted. Motion on the amendment failed by the following vote. Ayes: Councilors Barham, Smith, and Roberts-Burns Nays: Mayor Lyne, and Councilors Hatcher, Ginnings and Elmore Main motion failed by the following vote. Ayes: Mayor Lyne, and Councilors Hatcher, Ginnings and Elmore Nays: Councilors Barham, Smith, and Roberts-Burns City Clerk explained that as a result of this action, Ordinance 16-2009 remains in effect, which places Proposition 1 on the ballot with conflicting language relating to election by plurality and runoff language that was inadvertently left in the proposition wording in Section 21. In addition, Section 21 a, which relates to runoffs, remains in the Charter. Discussion ensued as to the ramifications of this action. Mayor Lyne read Section 8.10 "Reconsideration" of the Rules of Procedure for the City Council of the City of Wichita Falls — "A motion to reconsider any action of the Council can be made at the same meeting at which the action was taken. Such a motion can be made only by a member who voted with the majority, but it can be seconded by any member. It can be acted on only at the same meeting or the next regular meeting; if not acted on, it is dead." Moved by Councilor Ginnings to reconsider original proposed ordinance amending Ordinance 16-2009 to correct the language in Section 21 of the City Charter and delete Section 21 a of the Charter. Motion seconded by Mayor Lyne and the following was the vote. Ayes: Mayor Lyne, and Councilors Hatcher, Ginnings and Elmore Nays: Councilors Barham, Smith, and Roberts-Burns Mayor commented that you now have an ordinance that cannot be enforced. City Manager suggested that before it gets on the ballot that the new City Attorney take a little time and study this and if he agrees with Councilor Barham that it failed to even reach the ballot that it should not be on the ballot, I think we can address that as well. Otherwise you are going to have a question on the ballot that is conflicting within itself, because we vote by plurality but it speaks to what you will do if there is not a majority. Mayor stated that Council proceed with the rest of the agenda and return to this issue later. Item 4 ORDINANCE NO. 23-2009 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, APPROVING THE SUBMISSION OF AN ADDITIONAL PROPOSED CITY CHARTER AMENDMENT TO THE VOTERS DURING THE GENERAL-SPECIAL ELECTION OF MAY 9, 2009; FURTHER, SETTING FORTH THE ADDITIONAL PROPOSED AMENDMENT AND PRESCRIBING THE FORM OF THE PROPOSITION; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. 545 ` Item 4 continued Moved by Councilor Ginnings that Ordinance No. 18-2009 be passed. Motion seconded by Councilor Hatcher and carried by the following vote. Ayes: Mayor Lyne, Councilors Barham, Smith, Roberts-Burns, Hatcher, Ginnings and Elmore Nays: None Item 6 RESOLUTION NO. 46-2009 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, APPOINTING A CITY ATTORNEY FOR THE CITY OF WICHITA FALLS; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. Moved by Councilor Barham that Ordinance No. 18-2009 be passed by appointing Mr. Miles Risley as City Attorney. Motion seconded by Councilor Hatcher and carried by the following vote. Ayes: Mayor Lyne, Councilors Barham, Smith, Roberts-Burns, Hatcher, Ginnings and Elmore Nays: None Councilor Smith asked that since now that we have a City Attorney and if it is appropriate and if we all "agree" to give Miles the time to check this out, should we consider meeting before the end of this day? Mayor commented that he was going to suggest that Council recess until later this afternoon. Councilor concurred. Mayor recessed the meeting until 2:00 p.m. this afternoon. City Council reconvened at 2:05 p.m. Newly appointed City Attorney Miles Risley took his place at the dais. Item 3 continued Mayor stated that we were getting clarification on Item 3 City Attorney Miles Risley informed that when Council voted four to three you approved the Ordinance but the original amendment to the Ordinance failed. He clarified that the ordinance itself was an amendment to the Ordinance and it passed but the amendment to the amendment failed. Councilor Elmore mentioned the votes that were taken this morning regarding this item and asked which of those votes required a supermajority vote or five-two vote? City Attorney Risley informed that none of the votes required a five-two vote. The amendment that was before you without the changes is what was passed on a four-three vote. The amendment to the amendment failed on a three-four vote. Mayor further clarified that Item 3 passed with the original ordinance as submitted. The language has been cleaned up and will be placed on the ballot for the voters to decide on election by plurality or election by majority. 546 Item 3 continued Councilor Barham commented that the City Council Rules of Procedure need to be corrected. City Attorney Risley explained that the City Charter preempted the Rules of Procedure; neither the State Constitution nor the Local Government Code requires a super majority for placing an amendment for a vote. City Manager stated that there will be three propositions on the May 9, 2009 ballot, plurality, city clerk, and terms. City Council adjourned at 2:15 p.m. PASSED AND APPROVED this _J!J_day of 1�JI-V 2009. MAYOR ATTEST: _ i is Ozuna 'ty Clerk NOTICE OF MEETING Special Meeting Of The Mayor And City Council Of The City Of Wichita Falls, Texas, To Be Held In The City Council Chambers Of The Memorial Auditorium, 1300 Seventh Street, On Monday, March 9, 2009 Beginning At 8:30 A.M. City Council: Mayor Lanham Lyne, Councilors Glenn Barham, Michael Smith, Dorothy Roberts-Burns, Rick Hatcher, Jim Ginnings, and Charles Elmore. 1. Call To Order 2. (a) Invocation: (b) Pledge Of Allegiance 3. Ordinance Amending Ordinance 16-2009, To Amend Proposition No. 1 Of The Charter Amendments To Be Submitted To The Voters At The General- Special Municipal Election To Be Held May 9, 2009 (Council Bill # 70) 4. Ordinance Approving The Submission Of An Additional Proposed Amendment To The City Charter To The Voters During The General-Special Election Of May 9, 2009 (Council Bill # 71) 5. Executive Session To Deliberate Appointment Of City Attorney As Authorized By Section 551.074 Of The Texas Government Code 6. Resolution Appointing A City Attorney For The City Of Wichita Falls (Council Bill # 72) 7. Adjourn Wheelchair or handicapped accessibility to the meeting is possible by using the handicapped parking spaces and ramp located off the east parking lot on the Sixth Street entrance. Spanish language interpreters, deaf interpreters, Braille copies or any other special needs will be provided to any person requesting a special service with at least 24 hours notice. Please call the City Clerk's Office at 761-7409. Wireless Listening System devices are available at the City Manager's reception area or you may call 761-7404 for inquiries. CERTIFICATION I certify that the above notice of meeting was posted on the bulletin board at Memorial Auditorium, Wichita Falls, Texas on the day of 2009 at o'clock (a.m.)(p.m.). City Clerk