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Home My WebLink About12/13/2005 - Regular Minutes - Parks Board Grir PARKS AND RECREATION ADVISORY BOARD MINUTES CITY OF COLLEGE STATION REGULAR MEETING v 7:00 PM Tuesday, December 13, 2005 The EXIT Teen Center 1520 Rock Prairie Road • College Station, Texas Staff Present: Steve Beachy, Director; Eric Ploeger, Assistant Director; Pamela Springfield, Staff Assistant Members Present: Gary Erwin; Harry Green; John Crompton; Gary Thomas; Kathleen Ireland; Glenn Schroeder Members Absent: Jodi Warner, Chair; Jeannie McCandless; Carol Blaschke Visitors: 1. Call to order. Glenn S., in Jodi Warner's absence, called the meeting to order at 7:01 p.m. 2. Possible action and pardon concerning requests for absences of members. Three requests for absence had been submitted by Jodi Warner, Chair; Carol Blaschke; and Jeannie McCandless. Kathleen I. moved to approve the three requests for absence that had been submitted. Gary E. seconded and the vote was called. All were in favor and the motion passed unanimously. 3. Hear visitors. Hearing none this item was closed. 4. Consideration, possible action, and discussion of minutes from the regular meeting of November 8, 2005. John C. moved approval of the November minutes as submitted. Gary T. seconded and the vote was called. All were in favor and the motion passed unanimously. 5. Consideration, Possible action, and discussion regarding potential Park Land Dedication requests: • Olden Homeplace — Park Zone 14: A Park Land Dedication Checklist had been included in the members' packets. This would create one single-family residence near the landfill on E. Rock Prairie Road. Staff was recommending acceptance of the $556 in development fees, in lieu of the .01-acre land dedication. John C. moved approval of the funds in lieu of the land dedication. Kathleen I. seconded the motion. The vote was called. All were in favor and the motion carried unanimously. The building is wheelchair accessible. Handicap parking spaces are available. Any request for sign interpretive services must be made at least 48 hours before the meeting. To make arrangements call(979) 764-3517 or(TDD)1-800-735-2989. Agendas may be viewed on www.cstx.gov. 6. Consideration, possible action, and discussion on the Park Land Dedication Ordinance Revisions. A copy of the presentation that would be shown at the Thursday, December 15, 2005 City Council meeting, was handed out to the members. Steve explained that the original ordinance, which had been passed in 1975, had last been updated in 2002. That 2002 version was the one that would be going to Council for approval. The Board had last reviewed the ordinance in August at the joint meeting with Planning & Zoning. A three-year cycle for review of the ordinance had been recommended. Steve stated that since the August review, there had been a change in the inclusion of language defining the process for phased subdivision developments (see page 3 of the Ordinance " Section 1, D). The developer will now be required to either dedicate land up front or provide for the financial security of the land up front. This is being done so that in case the development is not completed, the park can still be developed. It also provides three different ways to determine the market value in order to set that financial guarantee. Steve explained that because it has taken so long to get the 2002 revisions approved, the Board has already begun discussions for the next review. Staff was sending out notices to some Texas cities to see what dedication ordinances they have in place. Staff is hoping to be able to gather good information from that effort. Hearing no discussion, John C. moved approval of the changes and to forward the revisions on to the City Council. Gary E. seconded. The vote was called and all were in favor of the revisions. The motion passed unanimously. 7. Consideration, possible action, and discussion regarding the Open Meetings and Public Information Act. Steve said that there had been some changes in the open meetings and public information laws over the past year. The City Secretary was currently attending a conference to learn about those changes and would attend the January regular meeting to go over them with the Board. A few of the items that will be discussed: • Board and committee members will have to be certified regarding Open Meetings and Public Information laws. Staff was not sure if that was a state or local law. • Agendas, by law, have to be posted 72 hours prior to the meeting; and, by city policy within five business days. • Members cannot discuss items not listed on the agenda. • Members discussing board issues or meeting one-on-one about board issues would be in violation of the Open Meetings Act. • All city boards and committees must follow the same rules and regulations. As the governing board for the Lincoln Center, the Senior Advisory Committee, and the Conference Center Advisory Committee, the Parks and Recreation Advisory Board would not be responsible for what those committees do. However, it may be better to have volunteer groups rather than those formal committees. The City Secretary will further define some of these issues in January. This was an informational item only and no action was required. 8. Report, possible action, and discussion regarding the joint subcommittee with the Planning and Zoning Commission. Two meetings had been held with the main discussion relating to the Greenways Coordinator position (which department the position should be located in) and community appearance issues. No recommendations have come back from the group yet, but one of the issues discussed at the last meeting was the 1992 Streetscape Ordinance. Steve stated that the ordinance was very good but was not being used. The joint subcommittee was just getting started and had no set schedule for the meetings. More reports would be forthcoming. This was an informational item only, with no action required. 9. Review, possible action, and discussion concerning Board and Departmental Goals and Objectives, and City Council Strategic Plan. • Nothing much was known about the status of the update to the City Council Strategic Plan. • In February or March, Parks Planning staff would have a report on a detailed list that was being put together on all of the parks. Each park was being looked at individually to see what upgrading could be done as far as the facilities and appearance of the parks is concerned. The list will help when it comes to future bond programs and will define what specifics to ask for. John C. asked if a major tree planting program could be integrated as part of that. Steve stated that this was doable and appropriate; explaining that the Department tries to plant trees for spring color, summer color, fall color, and trees that are evergreen for winter. • One goal next year for Curtis Bingham, the Parks Operations Superintendent, is to create a network of neighborhood park contacts - citizens that would be willing to be the eyes and ears for a particular park near where they live. They can call the department if there is a problem, but can also provide feedback and help with the flow of information back and forth between the city and the citizens. This was tied in with the list that Parks Planning was doing and there would be more information in the future. • Goals - Steve explained that when the board set up their goals, some were based on the City Council Strategic Issues. Those goals and objectives help to build the department's goals and the department goals directly support the Board and Council. Hearing no further discussion, this item was closed. 10. Report, possible action, and discussion concerning the Capital Improvement Program. Updated lists had been included in the members' packets. • Park Land Dedication Project List: Some of the projects on the list were making substantial progress. • Current Capital Improvement Project List: The support buildings project at Wolf Pen was moving forward. The Wolf Pen Creek TIF Board was very excited about the plans. The goal was to put the project out to bid in late March. A new ticket office, management office, and concession stand will be built. Giving a plaza for concessions will move it away from the hill and the people watching the concerts. A building for the performers will have restrooms, showers, a green room, and a smoking deck. There will be a room that will be big enough to hold meetings and will provide performers with a view of the amphitheater and the crowd before they go on stage. Sheila Walker is now responsible for events and programming in the corridor, as well as the amphitheater. Veterans Park & Athletic Complex: Staff was making plans to put this project out to bid on December 22, 2005. John C. asked if trees would be going in around the pathways. Ric stated that there would be some going in around the trails. John C. asked if a lot of trees could be installed. Ric explained that two different cost estimates for the project had been received for this second phase and if the estimates are good, there should be quite a bit of money left over to plant additional trees. He added that, although it does not look like it because they are younger, there were 350-400 trees planted in the first phase. The contract for construction should go to council in early February. The design process went extremely well and the project itself will be over 6 million. 11. Discussion of calendar, future meeting dates, and possible agenda items: • January Regular meeting January 10, 2006 • Requests for future agenda items: rs, In January, the City Secretary would do a presentation on open meetings laws; ty An agenda item for discussion of the future park site on E. Rock Prairie and the landfill site; — Discussion regarding the merits of appointing a graduate student to sit on the board; ry An update on the line-up for athletic tournaments for 2006; and — Public appearance issues and the City's Streetscape Plan. 12. Adjourn. Kathleen I. moved to adjourn the meeting and Gary E. seconded. All were in favor. The meeting adjourned at 8:10 p.m. Park Land Dedication Ordinance Project Review Checklist Date Received: 11-29-05 Park Zone: 14 Current Zone Balance: $13,344 Project Location: Rock Prairie Rd. Name of Development: Olden Homeplace Phase: N/A Applicant: Arthur Olden Family Trust & Dolly Olden Address: 7804 Rock Prairie Rd. East City/State/Zip: College Station, TX 77845 Phone Number/Fax: 979-690-6819 Fax Number: E-mail: Engineer/Planner: Joe Orr Inc. Address: 2167 Post Oak Circle City/StateZip: College Station, TX 77845 Phone Number/Fax: 979-690-3378 Fax Number: E-Mail: REQUIRED COMPLIANCE Section 10-B-1: Land Dedication Single Family Dwelling Units: 1 Multi-Family Dwelling Units: Total Land Requirement: .01 Acres Proposed Dedication: 0 Section 10-B-2: Fee in Lieu of Land Has the Planning and Zoning Commission's approval been obtained? No Land Fee: Single Family Fee ($198/dwelling unit): $198 x 1 = $198.00 Multi-Family Fee ($160/dwelling unit): Total Acquisition Fee: Section 10-B-3: Park Development Fee Single Family Fee ($358/dwelling unit): $358.00 x 1 = $358.00 Multi-family Fee ($292/dwelling unit): Total Fee Amounts: Total Single Family Fee ($556/dwelling Unit): $556 x 1 = $556.00 Multi-Family Fee ($452/dwelling Unit): Section 10-B-4: Park Development in Lieu of Fee Required development cost: Staff review date and comment: 12-01-05 Parks Board review and decision: 12-13-05 Section 10-B-5: Minimum Park Size Is the proposed park less than five (5) acres? N/A If yes, staff recommends: Section 10-B-7: Prior Park Acquisition Is there an existing park that can serve the proposed development? If yes, staff recommends: Section 10-E: Comprehensive Plan Is the proposed park dedication in compliance with the City's Comprehensive Plan and the Recreation, Park, and Open Space Master Plan? Comments: Section 10-F: Additional Information 1. Is land in the 100-year floodplain? NO Percentage: a. Detention/Retention? NO Size: Meets Board Policy? Acreage in floodplain: None Percentage: Acreage in detention: None Percentage: Acreage in greenways: None Percentage: Comments: Section 10-F (of the Park Land Dedication Ordinance) 10-F. 1 Any land dedication to the City under this section must be suitable for park and recreation uses. Consideration will be given to land that is in the floodplain or may be considered "floodable" even though not in a federally regulated floodplain as long as, due to its elevation, it is suitable for park improvements. (a) Neighborhood park sites should be adjacent to residential areas in a manner that serves the greatest number of users. Comments: (b) Neighborhood park sites should be located so that users are not required to cross arterial roadways to access them. Comments: (c) Sites should not be severely sloped or have unusual topography which would render the land unusable for organized recreational activities. Comments: (d) Sites should have existing trees or other scenic elements. Comments: (e) Detention/retention areas will not be accepted as part of the required dedication, but may be accepted in addition to the required dedication. If accepted as part of the park, the detention/retention area design must be approved by the City staff and must meet specific parks specifications. Comments: 10-F. 2 Parks should be easy to access and open to public view so as to benefit area development, enhance the visual character of the city, protect public safety, and minimize conflict with adjacent land uses. The following guidelines should be used in designing parks and adjacent development: (a) Where physically feasible, park sites should be located adjacent to greenways and/or schools in order to encourage both shared facilities and the potential co-development of new sites. Comments: (b) A proposed subdivision adjacent to a park may not be designed to restrict reasonable access to the park from other area subdivisions. Street and greenway connections to existing or future adjoining subdivisions may be required to provide reasonable access to parks. Comments: (c) Where a non-residential use must directly abut a park, the use must be separated by a screening wall or fence and landscaping. Access points to the park may be allowed by the Planning and Zoning Commission if a public benefit is established. Comments: (d) It is desirable that a minimum of fifty percent (50%) of the perimeter of a park should abut a public street. In all cases, the City shall approve the proposed street alignment fronting on city parks. Comments: (e) Streets abutting a park shall be built in accordance with the thoroughfare plan and the standards of this ordinance; however, the City may require any residential street built adjacent to a park to be constructed to collector width to ensure access and prevent traffic congestion. The developer may request oversize participation in such an instance. Comments: Staff Recommendations: Acceptance of parkland dedication fee Section 10-G: Approval: At the regular meeting on December 13, 2005, the Board voted unanimously to accept the dedication fees of$556 in lieu of land. Parks and Recreation Advisory Board: Planning & Zoning Commission: City Council: EMEFORRALDEST i 1 4 $j4 Q b\J1K ,taFOXFIRE e CARTER - 7 . 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AN ORDINANCE AMENDING CHAPTER 9, "SUBDIVISIONS", SECTION 10, "REQUIREMENTS FOR PARKLAND DEDICATION", OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY AMENDING CERTAIN SECTIONS AS SET OUT BELOW; PROVIDING A SEVERABILITY CLAUSE; DECLARING A PENALTY; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That Chapter 9, Section 10 "Requirements for Park Land Dedication", of the Code of Ordinances of the City of College Station, Texas, be amended as set out in Exhibit "A", attached hereto and made a part of this ordinance for all purposes. PART 2: That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. PART 3: That any person, firm, or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty Five Dollars ($25.00) nor more than Two Thousand Dollars ($2,000.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 34 of the Charter of the City of College Station. PASSED, ADOPTED and APPROVED this day of , 2005. APPROVED: RON SILVIA, Mayor ATTEST: Connie Hooks, City Secretary 1:WR1*cc' City Attorney Olgroupilegallordinancelamendmenyorm doc ORDINANCE NO. Page 2 EXHIBIT "A" That Chapter 9, "Subdivisions", of the Code of Ordinances of the City of College Station, Texas, is hereby amended by amending Section 10: "Requirements for Park Land Dedication" by deleting Subsections 10A through 10H and substituting the following: "SECTION 10: Requirements For Parkland Dedication 10-A Purpose This section is adopted to provide recreational areas in the form of neighborhood park facilities as a function of subdivision and site development in the City of College Station. This section is enacted in accordance with the home rule powers of the City of College Station, granted under the Texas Constitution, and the statutes of the State of Texas, including, but not by way of limitation, Texas Local Government Code Chapter 212 (Vernon 1999; Vernon Supp. 2004-2005) as amended from time to time. It is hereby declared by the City Council that recreational areas in the form of neighborhood parks are necessary and in the public welfare, and that the only adequate procedure to provide for neighborhood parks is by integrating such a requirement into the procedure for planning and developing property or subdivisions in the city, whether such development consists of new construction on vacant land or rebuilding and remodeling of structures on existing residential property. Neighborhood parks are those parks providing for a variety of outdoor recreational opportunities and located within convenient distances from a majority of the residences to be served thereby. The park zones established by the Parks and Recreation Department and shown on the official Parks and Recreation map for the City of College Station shall be prima facie proof that any park located therein is within such a convenient distance from any residence located therein. The primary cost of neighborhood parks should be borne by the ultimate residential property owners who, by reason of the proximity of their property to such parks, shall be the primary beneficiaries of such facilities. Therefore, the following requirements are adopted to effect the purposes stated above and shall apply to any land to be used for residential purposes: 10-B General Requirements The City Manager or his designee shall administer this Section 10, Requirements for Parkland Dedication with certain review, recommendation and approval authorities being cup:Igrouplagen-callcouncil agendaslin-review10512151parks and recreationlparlcland dedication ordinancell chapter 9 amendment parkland rev 10 17 05.doc 12/6/05 —— ORDINANCE NO. Page 3 assigned to the Planning and Zoning Commission and the Parks and Recreation Advisory Board as specified herein. Dedications shall cover both land acquisition and development costs for neighborhood parkland for all types of residential development. Dedications shall be based on actual dwelling units for the entire development. Increases or decreases in final unit count prior to final plat will require an adjustment in fees paid or land dedicated. If the actual number of dwelling units exceeds the original estimate additional parkland shall be dedicated in accordance with the requirements in this Section 10 with the filing of a final plat. The methodology used to calculate fees and land dedications is attached hereto as Appendix 1 and incorporated and made a part of this ordinance for all purposes. Fees paid under this Section may be used only for development or acquisition of a neighborhood park located within the same Zone as the development. 1. Land Dedication For single family developments the area of land to be dedicated for parkland purposes shall be equal to one (1) acre for each one hundred one (101) dwelling units. For duplex and other multi-family development this area shall be equal to one (1) acre for each one hundred twenty-five (125) dwelling units. The total amount of land dedicated for the development shall be dedicated in fee simple by plat: a. Prior to the issuance of any building pet nits for multi-family development, b. Concurrently with the final plat for a single phase development, c. For a phased development the entire park shall be either platted concurrently with the plat of the first phase of the development or d. The developer may provide the City with financial security against the future dedication by providing a bond, irrevocable letter of credit, or other alternative financial guarantee such as a cash deposit in the amount of the appraised value of the parkland. The amount of the financial guarantee is calculated by multiplying the number of acres of parkland required to be dedicated by the average value of an acre of land in the subdivision. The average value of an acre of land in the subdivision is calculated by dividing the fair market value of the land in the subdivision by the number culp:Igrouplagen-callcouneil agendaslin-review10512151parks and recreation parkland dedication ordinancell chapter 9 amendment parkland rev 10 17 05 doc 12/6/05 ORDINANCE NO. Page 4 of acres in the subdivision. To make this calculation, the subdivider may select one of the following fair market value determinations: i. the current fair market value of the land as shown on the records of the tax appraisal district; ii. the current fair market value of the land as determined by a qualified real estate appraiser at the subdivider's expense, if the director of the Parks and Recreation Department approves the appraiser and certifies that the appraisal fairly reflects the land value; or iii. the current fair market value of the land as determined by a qualified real estate appraiser employed by the City. The financial guarantee will be released to the developer, without interest, upon the filing of the final plat for the subsequent phase that dedicates the required park land. 2. Fee in Lieu of Land The amount of the Fee-in-Lieu of Land ("Fee") shall be set at an amount sufficient to cover the costs of the acquisition of neighborhood parkland. A landowner may elect to meet the requirements of Section 10.B.1, in whole or in part, by paying a fee in the amount set forth below. Before making this election, for any required dedication greater than three (3) acres, or for any development containing floodplain or greenway, the landowner must: a. Obtain a recommendation from the Parks and Recreation Advisory Board and b. Obtain approval from the Planning & Zoning Commission pursuant to the Plat Approval Procedures in Article 3.3 of the Unified Development Ordinance. The fee shall be calculated as follows: • One hundred Ninety-eight Dollars ($198.00) per dwelling unit for single family development • One hundred Sixty Dollars ($160.00) per dwelling unit for duplex and multi- family development. culp:Igrouplagen-callcouncil agendaslin-review10512151parks and recreation parkland dedication ordinancell chapter 9 amendment parkland rev 10 17 05.doc 12/6/05 .._.._......................_.. ... .. ................. ORDINANCE NO. Page 5 The total amount of the Fee calculated for the development shall be remitted: • Prior to the issuance of any building permits for multi-family development or, • Upon submission of each final plat for single family, duplex or townhouse development. Fees may be used only for acquisition or development of a neighborhood park facility located within the same Zone as the development. The City Manager or his designee is authorized to accept the Fee for dedications of less than three (3) acres where: • There is a sufficient amount of parkland existing in the park zone of the proposed development; or • The proposed dedication is insufficient for a Neighborhood Park site under existing park design standards. This determination shall be made based on the Recreation, Park & Open Space Master Plan, as amended from time to time. 3. Park Development Fee In addition to the land dedication, there shall also be a fee established that is sufficient to develop the land to meet the Manual of Neighborhood Park Improvements Standards to serve the zone in which such development is located. This fee shall be computed on the basis of Three Hundred Fifty-eight Dollars ($358.00) per dwelling unit for single family developments and Two Hundred Ninety-two Dollars ($292.00) for duplex and multi-family development. The total fee shall be paid upon submission of each final plat or upon application for a building permit, whichever is applicable. 4. Park Development Option in Lieu of Fee A landowner may elect to construct the neighborhood park improvements in lieu of paying the Park Development Fee under the following terms and conditions: a. A park site plan, developed in cooperation with the Parks and Recreation Department staff, must be submitted to the City Manager or his designee for review. A site plan approved by the Director of Parks and Recreation and Parks and Recreation Advisory Board is required upon submission of each final plat or upon application for a building permit, whichever is applicable. culp.•Igrouplagen-callcouncil agendaslin-review10512151parks and recreationlparkland dedication ordinances!chapter 9 amendment parkland rev 10 17 05.doc 12/6/05 ORDINANCE NO. Page 6 b. Within twelve (12) months from the date of said submission or application the landowner shall submit detailed plans and specifications in compliance with the site plan to the City Manager or his designee for review and approval. c. All plans and specifications shall meet or exceed the Manual of Neighborhood Park Improvement Standards in effect at the time of the submission. d. If the improvements are constructed on land that has already been dedicated to and/or is owned by the City, then the Developer must post Payment and Performance Bonds to guarantee the payment to subcontractors and suppliers and to guarantee Developer completes the work in accordance with the approved plans, specifications, ordinances, other applicable laws and that City has issued a Certificate of Completion for the improvements. e. The construction of all improvements must be completed within two (2) years from the date of the approval of the plans and specifications. A final, one-time extension of twelve (12) months may be granted by the Administrator upon demonstration that said improvements are at least fifty percent (50%) constructed. f. Completion and Acceptance — Park development will be considered complete and a Certificate of Completion will be issued after the following requirements are met: i. Improvements have been constructed in accordance with the Approved Plans. ii. All parkland upon which the improvements have been constructed. has been dedicated as required under this ordinance. iii. All manufacturer's warranties have been provided for any equipment. g. Upon issuance of a Certificate of Completion, Developer warrants the improvements for a period of one (1) year as per the requirements in the Manual of Neighborhood Park Improvements Standards. h. The developer shall be liable for any costs required to complete park development if: culp:lgrouplagen-callcouncil agendaslin-reviewl0512151parks and recreationlparklnnd dedication ordinancell chapter 9 amendment parkland rev l0 17 05.doc 12/6105 ORDINANCE NO. Page 7 i. Developer fails to complete the improvements in accordance with the Approved Plans. ii. Developer fails to complete any warranty work. 5. Reimbursement for City Acquired Parkland The City may from time to time acquire land for parks in or near an area of actual or potential development. If the City does acquire park land in a park zone, the City may require subsequent parkland dedications for that zone to be in Fee-in Lieu-of-Land only. This will be to reimburse the City for the cost(s) of acquisition. Once the City has been reimbursed entirely for all such parkland within a park zone, this Section shall cease to apply. 10-C Prior Dedication or Absence of Prior Dedication If a dedication requirement arose prior to enactment of this Section 10, that dedication requirement shall be controlled by the ordinance in effect at the time such obligation arose, except that additional dedication shall be required if the actual density of structures constructed upon property is greater than the former assumed density. Additional dedication shall be required only for the increase in density and shall be based upon the ratio set forth in Section 10.B. (Credit shall be given for land dedicated or fees paid pursuant to prior parkland Ordinance Nos. 690, 983 or 2546.) 10-D Comprehensive Plan Considerations The Recreation, Park and Open Space Master Plan is intended to provide the College Station Parks and Recreation Advisory Board with a guide upon which to base its recommendations. Because of the need to consider specific characteristics in the site selection process, the park locations indicated on the Plan are general. The actual locations, sizes, and number of parks will be determined when development occurs. The Plan will also be used to locate desirable park sites before development occurs, and those sites may be acquired by the City or received as donations. Park Zones are established by the City's Comprehensive Plan, in the Park and Open Space element and are configured to indicate service areas for neighborhood parks. Zone boundaries are established that follow key topographic features such as major thoroughfares, streams, and city limit lines. 10-E Special Fund; Right to Refund 1. All parkland fees will be deposited in a fund referenced to the park zone involved. Funds deposited into a particular park zone fund may only be expended for land or improvements in that zone. culp:Igrouplagen-callcouncil agendaslin-review1051215Iparks and recreationlparkland dedication ordinance l I chapter 9 amendment parkland rev 10 17 05.doc 12/6/05 ORDINANCE NO. Page 8 2. The City shall account for all fees-in-lieu-of land paid under this Section with reference to the individual plat(s) involved. Any fees paid for such purposes must be expended by the City within five (5) years from the date received by the City for acquisition and/or development of a neighborhood park as defined herein. Such funds shall be considered to be spent on a first-in, first-out basis. If not so expended, the landowners of the property on the expiration of such period shall be entitled to a prorated refund of such sum, computed on a square footage of area basis. The owners of such property must request such refund within one (1) year of entitlement, in writing, or such right shall be barred. 10-F Parkland Guidelines and Requirements Parks should be easy to access and open to public view so as to benefit area development, enhance the visual character of the city, protect public safety and minimize conflict with adjacent land uses. The following guidelines and requirements shall be used in designing parks and adjacent development. 1. Any land dedicated to the city under this section must be suitable for park and recreation uses. The dedication shall be free and clear of any and all liens and encumbrances that interfere with its use for park purposes. The City Manager or his designee shall determine whether any encumbrances interfere with park use. Minerals may be reserved from the conveyance provided that there is a complete waiver of the surface use by all mineral owners and lessees. A current title report must be provided with the land dedication. The property owner shall pay all taxes or assessments owed on the property up to the date of acceptance of the dedication by the City. A tax certificate from the Brazos County Tax Assessor shall be submitted with the dedication or plat. 2. Consideration will be given to land that is in the floodplain or may be considered "floodable" even though not in a federally regulated floodplain as long as, due to its elevation, it is suitable for park improvements. Sites should not be severely sloping or have unusual topography which would render the land unusable for organized recreational activities. 3. Land in floodplains or designated greenways will be considered on a two for one basis. Two acres of floodplain or greenway will be equal to one acre of parkland 4. Where feasible, park sites should be located adjacent to greenways and/or schools in order to encourage both shared facilities and the potential co-development of new sites. culp:Igrouplagen-callcouncil agendaslin-review10512151parks and recreationlparkland dedication ordinancell chapter 9 amendment parkland rev 1017 05.doc 12/6/05 ORDINANCE NO. Page 9 5. Neighborhood park sites should be adjacent to residential areas in a manner that serves the greatest number of users and should be located so that users are not required to cross arterial roadways to access them. 6. Sites should have existing trees or other scenic elements. 7. Detention / retention areas will not be accepted as part of the required dedication, but may be accepted in addition to the required dedication. If accepted as part of the park, the detention / retention area design must be approved by the City Manager or his designee and must meet specific parks specifications in the Manual of Neighborhood Park Improvements Standards. 8. Where park sites are adjacent to Greenways, Schools existing or proposed subdivisions, access ways may be required to facilitate public access to provide public access to parks. 9. It is desirable that fifty percent (50%) of the perimeter of a park should abut a public street. 10-G Consideration and Approval Any proposal considered by the Planning and Zoning Commission under this Section shall have been reviewed by the Parks and Recreation Advisory Board or the City Manager or his designee as provided herein, and a recommendation given to the Commission. The Commission may make a decision contrary to the recommendation by a majority vote. 10-H Review of Land Dedication Requirements and Dedication and Development Fee The City shall review the Fees established and amount of land dedication required at least once every three (3) years. The City shall take into account inflation as it affects land acquisition and park development costs as well as the City's targeted level of service for parkland per one thousand population. Fees are authorized to be set by resolution of the City Council. 10-I Warranty Required All materials and equipment provided to the City shall be new unless otherwise approved in advance by the City Manager or his designee and that all work will be of good quality, free from faults and defects, and in conformance with the designs, plans, specifications, and drawings, and recognized industry standards. This warranty, any other warranties express or implied, and any other consumer rights, shall inure to the benefit of the City only and are not made for the benefit of any party other than the City. culp:Igrouplagen-callcouncil agendaslin-review10512151parks and recreationlparkland dedication ordinancell chapter 9 amendment parkland rev 1017 05.doc 12/6/05 ORDINANCE NO. Page 10 All work not conforming to these requirements, including but not limited to unapproved substitutions, may be considered defective. This warranty is in addition to any rights or warranties expressed or implied by law. Where more than a one (1) year warranty is specified in the applicable plans, specifications, or submittals for individual products, work, or materials, the longer warranty shall govern. This warranty obligation shall be covered by any performance or payment bonds tendered in compliance with this Ordinance. Defective Work Discovered During Warranty Period. If any of the work is found or determined to be either defective, including obvious defects, or otherwise not in accordance with this ordinance, the designs, plans, drawings or specifications within one (1) year after the date of the issuance of a certificate of Final Completion of the work or a designated portion thereof, whichever is longer, or within one (1) year after acceptance by the City of designated equipment, or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by this ordinance, Developer shall promptly correct the defective work at no cost to the City. During the applicable warranty period and after receipt of written notice from the City to begin corrective work, Developer shall promptly begin the corrective work. The obligation to correct any defective work shall be enforceable under this code of ordinances. The guarantee to correct the defective work shall not constitute the exclusive remedy of the City, nor shall other remedies be limited to the terms of either the warranty or the guarantee. If within twenty (20) calendar days after the City has notified Developer of a defect, failure, or abnormality in the work, Developer has not started to make the necessary corrections or adjustments, the City is hereby authorized to make the corrections or adjustments, or to order the work to be done by a third party. The cost of the work shall be paid by Developer. The cost of all materials, parts, labor, transportation, supervision, special instruments, and supplies required for the replacement or repair of parts and for correction of defects shall be paid by Developer, its contractors, or subcontractors or by the surety. The guarantee shall be extended to cover all repairs and replacements furnished, and the term of the guarantee for each repair or replacement shall be one (1) year after the installation or completion. The one (1) year warranty shall cover all work, equipment, and materials that are part of the improvements made under this section of the ordinance." culp:Igrouplagen-callcouncil agendaslin-review10512151parks and recreationlparkland dedication ordinancell chapter 9 amendment parkland rev 1017 05.doc 12/6/05 4-r" Parks & Recreation Advisory Board Goals & Objectives CITY OF COLLEGE S'FAFJON FY 2005 -06 (Not Prioritized) 1. Update the Recreation, Park, and Open Space; Master Plan • Revise and update the current plan which was approved in 2002. • Present revised plan to Parks & Recreation Advisory Board for approval. ElPresent the revised plan to City Council for approval. 2. Support Neighborhood Park Development and improvements (Parks & Leisure, Strategy 2) Crompton Park N (Park Zone 7) 4 Complete construction of Phase I Construction complete November 11, 2005 Conduct dedication ceremony N spring 2006 ❑ Complete design review and approval for Phase II project Edelweiss Gartens N (Park Zone 10) ▪ Conduct public hearings for proposed park improvements ❑ Complete design review and approval of conceptual plan for Edelweiss Gartens In design phase. Southwest Park Site ,.► (Park Zone 6) ❑ Conduct public hearings for proposed park improvements Complete design review and approval of conceptual plan for Southwest Park University Park " (Park Zone 2) Conduct public hearings for proposed park improvements Complete design review and approval of conceptual plan for University Park Southern Oaks Park N (Park Zone 10) Neighborhood celebration/dedication of park Review park master plan for future improvements Approved by Parks&Recreation Advisory Board: November 8, 2005 Updated: December 6, 2005 Steeplechase Park (Zone 10) JJConstruction of Steeplechase Park. Bid awarded contract pending. Completion expected in 2006. ❑ Dedication of Steeplechase Park. 3. Veterans Park and Athletic Complex (Parks & Leisure, Strategy 2) 121 Veterans Day Ceremony November 11, 2005 F4Complete Phase II design plans Plans complete. Construction process Bid process expected to take place in January 2006. Conduct groundbreaking ceremony 4. Continued interaction with other City Boards (Parks & Leisure, Strategy 2) Appoint Subcommittees for Trails, Trees, and Park Land Dedication Ordinance Report from Trails Subcommittee ElReport from Trees Subcommittee Report from Park Land Dedication Ordinance Subcommittee First report on December 13, 2005. Report from PARD/P&Z Subcommittee Report regarding status of Lincoln Center Advisory Committee Report regarding status of the Conference Center Advisory Committee ❑ Report from Senior Advisory Committee Report presented at November 8, 2005 regular meeting of the Parks & Recreation Advisory Board. Joint meeting/report to City Council 5. Park Land Dedication Ordinance Update (Planning & Development, Strategy 1) ElPresentation of revisions and approval by City Council Board approved revisions at joint meeting with Planning &Zoning August 18, 2005. Final review pending. Revise and make recommendations regarding dedication fees and land requirements. 6. Urban Forest Management Plan (Parks & Leisure, Strategy,;1) ❑ Review approved Urban Forest Master Plan with Parks and Recreation Advisory Board. 2 Develop recommendations for implementation Present recommendations to City Council and seek direction. 7. Capital improvement Projects, Oversight. (Parks& Lelture,-Strategy 2) Determine use for old buildings at Lincoln Center Funds requested for testing services. Funding not approved. ElReview report regarding potential park improvements and renovations Identify potential new CIP projects for next bond election JJReview and update Veterans Park Development Plan for future phases. Install Life Trail fitness equipment in Central Park 8. Needs Assessment'for Facilities and Programs. (Parks & Leisure, Strategy 2) Review and accept final report Parks Board: Draft report presented at October 11, 2005 regular meeting; final report pending. El Present report to City Council Council review: Possibly in December Develop implementation plan based upon City Council direction 9. Park Maintenance Standards Review and Direction. (Parks & Leisure,Strategy 1) ❑ Review quarterly standards reports from staff ElDevelop recommendations based upon findings Present recommendations to City Council 10. Support NRPA Accreditation Process . . ❑ Present accreditation program to Board ❑ Develop recommendations for implementation Submit application to NRPA 11. Coordinate a Community Ideas Exchange to Address Obesity Health-Related Issues ❑ Identify potential partners and agencies 3 • Determine date, location, and agenda • Conduct community ideas exchange meeting 12. Support Greenways Program (Parks & Leisure, Strategy#2) Develop recommendations for acquisition process for greenways Review and assist with update of Greenways Master Plan • Determine role of Parks and Recreation Department in greenways Determine which department would best serve the position of Greenways Coordinator Develop recommendations for trails and open space 13. City Center Project Support. Develop recommendations for Parks and Recreation office requirements Develop recommendations for future Community Center facility Develop recommendations for Senior Center facility 14. Conduct a illi FeasibilitY Study: Determine scope of feasibility Request funding for study and related costs 15» Identify Neighborhood Groups For Park Collaboration Projects Develop ideas for neighborhood beautification projects Develop plan for encouraging citizen gatherings in neighborhood parks Al Item Complete Pending/On Hold 4 Parks & Recreation Department (1.111.krr Goals & Objectives FY2006 CITY OF COLLEGE STATION (Not Prioritized) •► DRAFT N • Continuation of Staff Development • Leisure Programs • Cooperative Efforts • Park Maintenance Standards • Implementation of City Council Strategic Issues • Technology Services • Implementation of the CIP Program Continuation of Staff Development El Attend Supervisory Academy Graduation: Attend Emergency Management Academy Attend Arbor Master Training 2006 Forestry crew members to attend in Irving the first week of December 2005 0 Attend the 2005, 12th Annual Southeast Texas Grounds Maintenance Conference Twelve Parks Operations and Forestry crew members attended the conference the week of October 20, 2005 Coordinate prepare for and attend TRAPS Regional Workshop Scheduled for February 9, 2006 in College Station Attend 2005/2006 Texas Turfgrass Conference First conference in December; second during the summer ❑ Attend 2006 NRPA Conference Attend 2006 Trends in Recreational Facilities Conference Attend the 2006 College Station Leadership Institute Q Attend College Station Project Management Training Attended by Steve Beachy, Eric Ploeger, Ross Albrecht, and Peter Lamont on November 8-9, 2005 Investigate feasibility of NRPA Departmental Accreditation Cooperative Efforts Support Brazos Valley Senior Olympics El Investigate potential municipal golf course with City of Bryan Continue to support Grimes County Regional Park efforts Update the CSISD Joint Use Agreement CSISD collaborative efforts on future CIP projects Updated: December 6, 2005 Page 1 of 3 ....._... _. E Review and update `Guidelines for Emergency Operations' EContinue implementation of Veterans Memorial master plan Complete decoration of trains for the George Bush Library fundraiser Implementation of City Council Strategic Issues 0 Complete cemetery land acquisition (Core Services, #1) 0 Hire a design firm to develop new cemetery master plan ❑ Senior Committee report to Council Implementation of the CIP Program ❑ FY 2006 CIP Projects (Parks & Leisure, #2) Ongoing. Monthly report given to Board ❑ FY 2006 Park Land Dedication Projects (Parks & Leisure, #2) Ongoing. Monthly report given to Board E Develop recommendations for future CIP projects Leisure Programs 0 Conduct community-wide program inventory E Determine role of PARD in public health issues ❑ Conduct risk assessment of PARD existing programs El Develop plan for programming in the WPC Corridor ❑ Attend NRPA Health Conference in Farmers Branch on February 23, 2006 Park Maintenance Standards ❑ Continued implementation of Park Maintenance Standards ❑ Develop and implement WPC Corridor maintenance and operations program 0 Review and update plans for Parks Operations and Forestry redistricting, community-wide operations, and grounds maintenance Updated: December 6, 2005 Page 2 of 3 Technology Services Implement RecWare on-line registration New city telephone system operations 1/ Item Complete �1\`N Pending/On Hold Updated: December 6, 2005 Page 3 of 3 STRATEGIC PLANS IMPLEMENTATION CALENDAR • OCTOBER 2005 - DECEMBER 2005 STATEMENT SUBJECT TEAM OCTOBER NOVEMBER DECEMBER ..tyr. .ettp.‘J...411.4-,,' A,j.'" i7t.."* .,"•:.'tti.!!!!tt 1: .: '' -41.--4-7:I. _.‘,..;1„,,,,.;,, ',',:...• r ;,....,:. . ., ,,,,::: 1.., ; $ a ' ., m e Online/Phone Testing,* k ..",..",F,',. .,,,:•.: ti* '• ' x; r1� f7 '° :' r ,Y „ f ,t,,3, 4, Sai. i '► ix 1 1 va efY,art,s > , �i.Y,� e j N ll:♦ * rt., �� a u' * - Ie '� p' e* ;: ¢0w > 3 >` "€ ' > t P a 1 711 F41 ..': ea, ,i'la t. .a ' : • ar, „,,,,!'..,4.441,.! 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'„� �T s z 7:0;n,..,.'..;:' , ti,` I ,' Y € a, € F :a. r i41111:1711317 - A W kYc Y'Y Parks .,• t�re Pa� ;,.gena ,� . i,,.i Y; fl i . l',5"•;.;,— , rare� Ser9F t. t7 a ”' q »w �9 :''''.:41."..; .: ,,.,, f 1 1 s sa ii,> .J' ,, .�.:'t ,,. ':.a �Msa ; i ir'v. 4i x� i'" ':' ' `''^',�'u � Y",�`' Par s& ee4u ,, I' $ ., ' 1 c.. ' : N.: m v� nth Services r ament Ean}-{° . . ,Ili' 1, ParksAte/30M' Gres g `? :. Y :'4,t h:t4t4. •,=••**'..,r ' !•a'0:40:•••=•.•r•frfcir-��keK ij� 1'if i ••,qh it't 'dEn,rt'yF'v.3 ^..,":` k� P, `,''; ' ,a $& eise11*1raceP >Pk : [G • Yaa • Service 1 S$99>r , •Parts$1`his 1 l r',i.we "^ k j. ,c -.4:1; v y tef>Z ' � .4 t A s ante '4rli S}ni1'a n 'y t% '�t3 v't.d r,�t. kM .. _ '�r ' i 1° � ,�„£_;..`y "s'.t"1:m Y ',. e ! Needs Assessment Final Report to Parks"fir Leisure i � " ..°y ,,,, ' '114 •.' 3 Board&Report to Council MOVED �� 4 l,. iafttie Setvic c IVV r > � . . P Se 1c@$.� . � „� �� t Y, {�. �.' €o e► � ,<. �."'.00.04'0'.7,,,•. TO 2006 2 9t e''P•r0 taro i, tri �� ` •.:.` ,, > li • '; `, '» Needs Assessment Final Report Senior Report to City Council It e, :" . ,i! : x �;�: to Board MOVED TO JAN on December 15th j o 'd t . mrd " a x4 s,D,>c �^ d a a Y"'hc' „,,its, ;f r m ♦ �k Parks&`Leisu�r 40proltr*. ' yt ' > `1 1 +*'.` ,kl i,,NI f .7; "E"SY?. -:.,0r. � 1,,„;;L,34:„1, aSer�lYl'rCeB iatheityya ' jet, d Ai •V 21 ' ' �11V01 1k ,, t, .�'',4,,,,' , F C' 4" i 5 a n€ a a” ds`.. , ss � �. •', .a 1;,k, '.3 #k 1 "rv` ° 3 ,rr" fa'',Y {,:as. , t Y{� #.: Parg 'eisaf i .,,TA,, %'e, 4':, i. .> ;{a t' j Out to Bid—MOVED TO JAN 2006 40 fig, a Qitt € l�'' ',"j*s •` k �;.a c xfx '?�� 11� ', ?a o-:, Vim i x • . z'in:au:..zr wzd.' t� tom : i _ %�" ;w3''' 'a + ParkA�3"�ry�3y�B[�T�Sttr Y z �y� 't Ongoing projects Vef RIVii� <";• a �'j° 't. �^j�4'� ri('l"`ssY, $' NOTE: Shaded items have been completed. VPAC II kit3 Additional fields included in design x ifTI',.2,4', 4 4' P "j':/itiffeji.01/474''n',AiTAji;00,01'-1,:a.„, :?,,,,.,4-r-,0 144 �/e E B4'E BF blE'; E : • !k £ EE&' 4 8 9 4 , .8.49,4F0Fiii...F; .446,41.14 ,'..'74 rt:14444ti 4 9 i,,'44„111.141,41' ttil cal" t'fb,14.,,Acit•IT ,,' • "'''-*w-liAlenr t it',',i ' ° AF 41' 4/6.", ' .,'iTvilke! . Expected update through council tL1 .......__ _.._. ......_.... PARKS AND RECREATION DEPARTMENT CAPITAL IMPROVEMENT& PARK LAND DEDICATION PROJECTS FY'06 December 1, 2005 Capital Improvement Projects Capital Improvement Project Fundin Completion Projects Status Manager Project# Budget Source Date Final Expected/Actual Cost Jack&Dorothy Miller Park Basketball Court Cover Complete Pete PK0512 $175,000 '05 General Fund 9/05 10/05 $152,850 Intergenerational Park Additions Substantial Completion David PIC0513 $310,000 '03 Bond 9/05 10/21 $304,438.85 Lincoln Playground Complete Pete PK0533 $50,000 '05 Gen.fund 11/30 12/01/05 $56,570 Lions Park Iron Fence In Design Pete PK0603 $25,000 CDBG 04/06 Pending Design New Forestry Shop Contract Ric PK0520 $100,000 '03 Bond Lions Park Basketball Court& Cover In Design Pete PK0604 $220,000 CDBG 04/06 Lemontree Ball field Lights In Design Pete PK0606 $78,000 General Fund 05/06 Pending Design Lincoln Center Walk Cover Contract Ric PK0602 $45,000 CDBG Soccer field irrigation @ Field redevelopment Southwood Park In Design Pete PK0300 $39,000 fees 03/06 Veterans Park Phase II In Design Ric P0501 $6,925,000 '03 Bond 10/07 WPC Multipurpose Building In Design Ric WP0501 $700,000 WPC T.I.F. 5/06 BeeCreek Playground In Design David N/A $75,000 Replacement Fund 08/06 Replacement University Park Development In Design David PK0410 $400,000 General Fund Steeplechase Park Development Pending Contract David Pk0502 $315,000 Community Dev. 03/06 W.A.Tarrow Spray Park Out to bid Ric PK0503 $245,000 Community Dev. Northgate Restrooms No status Ric $300,000 FY'05 Cemete Land Ac.uisition Pendin. Land Contract Ross GG9905 $275,000 '98 G.O. Unknown I—Intergenerational Project CIP Summary e ,l z it ) Zr-," • "y'; L ; m`pie, Sutbstt+antla o anon 4 : I` 1+,. Under Construction 0 Under Contract 0 Pendin• Desi•n Contracts 3 Bids Received 0 Out to Bid/Re-Bid 1 In Desi•n 8 Pendin• Land Contract 1 On Hold 0 No Status 1 17 Park Land Dedication Pro"ects Park Land dedication Project ProjectCompletion Prioritized Status Manager # Budget Funding Date Final Projects g Source Ex.ected/Actual Cost ZONE 1 -$203,492 North.ate Park Ac.uisition On Hold ZONE 2-$86,398 Zone 1 Funds ZONE 3-$101,325 Cy Miller Park Sign Bed Complete Peter PK0532 $9,000 Zone 3 Funds Central Park Ball field entrance Improvements Out to bid David Pk0605 10/15/05 10/22/05 $8;667 Redevelopment 2/10/05 $30,000 Fund Youngblood Memorial Under Construction David PK0534 $12,502 Zone 3 Funds 12/20/05 Central Park Life Trail On Hold David ZONE 4-$22,267 Raintree Improvements Concrete Walks On Hold Pete NA Zone 4 Funds+ $0 $15,000'98 Bond Windwood Im.rovements Concrete Walks On Hold Pete NA $0 Zone 4 Funds ZONE 5-$24,787 ZONE 6-$85,466 Southwest Park Development On Hold Pete/David $90,000 Zone 6 Funds Gabbard Park Sidewalk 1 On Hold David NA $0 Zone 6 Funds ZONE 7-$262,592 1 • John Crompton Park Development/ Complete; Pete PK9803 $710,000 Zone 7 Funds , Oct.1/05 11/04/05 $550,360 ZONE 8-$41,833 ZONE 9-$34,516 ZONE 10-$230,212 Desi.n Edelweiss Gartens In Design Pete ZONE 11 -$28,273 ZONE 12-$10,686 ZONE 13-$583 I-Intergenerational Project Park Land Dedication Summary Completed 2 9:y Under Construction 1 Under Contract 0 Bids Received 0 Pending Contracts 0 Out to Bid 1 In Design 1 Pending Land Acquisition 0 On Hold 6 Total O:/Projects/CIP/CIP&Park Land Ded Project List.doc Page 2 College Station Senior Advisory Committee Regular Meeting Monday, November 28, 2005 College Station Teen Center 1520 Rock Prairie Rd. 10:00am MINUTES Members Present: E.E. Burns, Joyce Davis, Rick Heaney, Dorothy Hernandez, Jack Hernandez, Laura Holmes, Edgar Jones, Joe LeCour, Robert Meyer, Haskell Monroe, Raymond Reed, Colleen Risinger, Yvonne Stevens, Doreen Todd and Joanna Yeager Members Absent: Patricia Boughton and Neal Nutall Staff Present: Marci Rodgers, Senior Services Coordinator I. Call to order The meeting was called to order at 10:08 by Robert Meyer, Chairman. New members, Jack Hernandez and Joyce Davis were introduced. II. Hear visitors No visitors III. Approval of minutes from regular meeting on October 31, 2005 Joe LeCour made the motion that the minutes be approved. Ray Reed seconded the motion. The motion passed. IV. Discussion, consideration and possible action concerning report to Parks and Recreation Advisory Committee Robert Meyer gave the report and updated the committee on the presentation made to the Parks and Recreation Advisory Board on November 8, 2005. A copy of the report was distributed to the committee. Mr. Meyer reported that at the Advisory Board meeting a motion was made to commission a feasibility study to identify the costs, revenues and facilities associated with a senior center which will accommodate senior citizens and other community programs and that they would consider the status of the existing Conference Center as part of the study. In a separate motion the board approved the report presented by the Senior Advisory Committee and granted permission to present to the City Council. V. Report, discussion and possible action concerning presentation to City Council on December 15, 2005 The committee discussed the report and presentation to City Council on Thursday, December 15, 2005 at 3:00pm at City Hall. The Committee discussed members who would address the council in support of the facility after the presentation by staff and Mr. Meyer as Chairman. Rick Heaney will speak followed by Ray Reed, Joanna Yeager and Joe LeCour. Any member may speak if they wish. Haskell Monroe made the motion that the report be approved and forwarded to City Council. Joanna Yeager seconded the motion. The motion passed. VI. Senior Services Coordinator Report (report attached) VII Next meeting and agenda items: Monday,December 19, 2005 • Appoint sub-committee to establish goals for 2006 VIII. Adjourn The Committee adjourned at 11:20am Senior Services Coordinator Report November 2005 Goal Setting Sub-committee—Members interested in serving on this committee are needed to establish goals for 2006. Classes for Spring 2006 Xtra Education Brochure We are currently scheduling classes for the Spring Brochure for seniors. An and/or instructors will be greatly appreciated. y suggestions December 2-.January 2 Christmas in the Park Enjoy free cookies, hot chocolate, hayrides, entertainment and visits with Santa at College Station Central Park, 1000 Krenek Tap Road. The lights will be on nightly from 6:OOpm 11:OOpm. December 6 - Computer Classes offered for seniors Classes will be offered for seniors on Computer User Tips and Internet and Email. Classes meet twice a week for a cost of$30.00. Registration takes place at the College Station Parks and Recreation Department office located in Central Park(1000 Krenek Tap Road). For more information on class dates and times please contact College Station Senior Services at 764-6371. December 10 - Christmas in the Park Holiday Baking Contest Adult and Youth categories offered for cookies and Holiday Specialties (sweet and non-sweet). Prizes will be awarded. All entries must be homemade and dropped off at the College Station Parks and Recreation office located in Central Park between 10:00am and 2:00pm on Saturday, December 10th. December 14 - Computer Club for Seniors The Computer Club for Seniors meets the second Wednesday of each month at no cost to the participants from 9:OOam-10:30am. The meeting will take place at the College Station Conference Center located at 1300 George Bush Drive. The speaker is Howard Eliers speaking on the methods of good photography. December 15 - Holiday Dance Please join us at the College Station Conference Center, 1300 George Bush Dr. from 7:00pm- 9:30pm for a Holiday Dance. The cost is $5.00/person. Refreshments and door prizes will be given away. Hear your favorite tunes from DJ, Tom Byer. The dance is sponsored by the College Station Parks and Recreation Department Senior Services and The Gold Medallion Club. December 15 City Council Meeting The Senior Advisory Committee is scheduled to report to the City Council on December 15th from the public input they have received regarding a future senior center for College Station. Members are encouraged to attend the meeting. Page 2 of 13 123 S.W.3d 469 Page 1 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) H A core purpose of Texas Open Meetings Act (TOMA) is to enable the public to have access to Briefs and Other Related Documents the actual decision-making process of its governmental bodies. V.T.C.A., Government Code § 551.002. Court of Appeals of Texas, San Antonio. [2]Administrative Law and Procedure x.124 R. Robert WILLMANN,Jr.,Brigid Sheridan,and 15Ak124 Most Cited Cases Ed Minarich,Appellants, The provisions of Texas Open Meetings Act v. (TOMA) are mandatory and are to be liberally CITY OF SAN ANTONIO,Appellee. construed in favor of open government. V.T.C.A., No.04-02-00853-CV. Government Code § 551.002. Oct. 8,2003. [3]Courts 0'89 Rehearing Overruled Nov. 3,2003. 106k89 Most Cited Cases Texas Attorney General's opinions, although not Municipal judges brought action against city to binding on an appellate court, are considered challenge new method city adopted to appoint persuasive authority. municipal court judges. The 285th Judicial District Court, Bexar County, David A. Berchelmann, Jr., [4]Judgment€'181(15.1) J., granted city's motion for partial summary 228k181(15.1)Most Cited Cases judgment, and, following bench trial, the court, Genuine issue of material fact as to whether city David Peeples, J., entered final judgment for city. court committee was a "governmental body" under Judges appealed. The Court of Appeals, Phylis J. the Texas Open Meetings Act (TOMA), and thus Speedlin, J., held that: (1) as a matter of first whether city council violated TOMA in passing impression, genuine issue of material fact as to recommended ordinance regarding appointment of whether city court committee was not merely an municipal judges, precluded summary judgment for advisory committee but rather was a "governmental city in action by judges to challenge ordinance. body" subject to the requirements of the Texas V.T.C.A.,Government Code § 551.001(3)(D). Open Meetings Act (TOMA), and thus whether city violated TOMA in passing ordinance, precluded [5]Administrative Law and Procedure€124 summary judgment, and (2) provisions of state 15Ak124 Most Cited Cases constitution and city charter requiring officers to A governmental body does not always insulate itself perform duties of office until successor is duly from Texas Open Meetings Act's (TOMA's) qualified did not apply to judges, as they had application simply because less than a quorum of effectively been removed from office. the parent body is present. V.T.C.A., Government Code §551.001(3)(D). Reversed and remanded in part;otherwise affirmed. [6]Administrative Law and Procedure€124 West Headnotes 15Ak124 Most Cited Cases A committee appointed by a governmental body [1]Administrative Law and Procedure€124 constituting less than a quorum of its members may 15Ak124 Most Cited Cases be subject to Texas Open Meetings Act (TOMA) ©2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B0055800000... 9/20/2005 rage or I s 123 S.W.3d 469 • Page 2 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) because it falls either within a definition of the term David Peeples,Judge Presiding. [FN 1] governmental body or as a subcommittee of a governmental body. V.T.C.A., Government Code § FNI. The Honorable David A. 551.001(4). Berchelmann, Jr., granted the order on the City's motion for partial summary [7] Administrative Law and Procedure€124 judgment which appellants also appeal. 15Ak124 Most Cited Cases Texas Open Meetings Act (TOMA) definition of a Harry A. Nass, Jr., James M. Parker, San Antonio, governmental body generally comprehends an entity for appellants. with the power to supervise or control public business. V.T.C.A., Government Code § John E. Clark, Goode Casseb Jones Riklin Choate 551.001(3)(D). & Watson, P.C., Michael R. Hedges, Hedges & Associates,P.C., San Antonio,for appellee. [8]Judges€7 227k7 Most Cited Cases Sitting: ALMA L. LOPEZ, Chief Justice, KAREN Provisions of state constitution and city charter ANGELINI, Justice, PHYLIS J. SPEEDLIN, requiring officers to perform duties of office until Justice. successor is appointed and duly qualified did not apply to invalidate new city ordinance regarding OPINION appointment of judges, as ordinance effectively removed judges from office. Vernon's Ann.Texas Opinion by PHYLIS J. SPEEDLIN,Justice. Const. Art. 16, § 17. Robert Willmann, Jr., Brigid Sheridan, and Ed [9] States€ 51 Minarich (collectively "appellants"), challenge the 360k51 Most Cited Cases method used by the City of San Antonio ("the Even when an officer of the state resigns, under the City") in appointing municipal court judges. constitution he or she is held over in the Appellants contend on appeal that the trial court performance of their duties until a successor is erred in granting the City's no-evidence motion for elected or appointed and has been qualified. partial summary judgment. Appellants also Vernon's Ann.Texas Const.Art. 16, § 17. challenge the trial court's judgment that Ordinance No. 86503 does not violate Article 16, section 17 of [10j Officers and Public Employees€54 the Texas Constitution. We agree with the trial 283k54 Most Cited Cases court that the ordinance does not violate the Texas Holdover provision of the state constitution Constitution; however, we find that appellants requiring officers to perform duties of their offices raised a genuine issue of material fact with regard to until successors are duly qualified becomes whether the City Council violated the Texas Open operative only after the officer's term has expired. Meetings Act ("TOMA") in passing Ordinance No. Vernon's Ann.Texas Const.Art. 16, § 17. 86503 (the "Ordinance") relating to the appointment and reappointment of municipal court 1111 Officers and Public Employees€71.5 judges in August 1997. Accordingly, we reverse 283k71.5 Most Cited Cases the trial court's order on that claim and remand for (Formerly 283k54) further proceedings. We, however, affirm the trial One who has been removed from office within the court's judgment as to appellants' state state does not have right to holdover under state constitutional claim. constitution until successor is duly qualified. Vernon's Ann.Texas Const.Art. 16, § 17. *471 BACKGROUND *470 From the 285th Judicial District Court, Bexar The essential facts are undisputed by the parties. County, Texas, Trial Court No. 1999-CI-04626; The City Council of San Antonio consists of eleven ©2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=I ITMLE&dataid=B0055800000... 9/20/2005 Yage 4 of 13 123 S.W.3d 469 123 S.W.3d 469 (Cite as: I23 S. Page 3 W.3d 469) members--ten council Robert members and one Willmaconn was first a mayor. R. Councilman Flores, a co municipal court printed as a part-time Sheridan Judge on July 5, 1990. Brigidcorrespondence Py of the interdepartmental was first appointed and a draft of P rtmental municipal courtas a full-time were given to each CityOrdinance No. 86503 Minarich judge on December 19, 1991. Ed prior to the Council member a few days was first appointed as a meeting of the full City municipal court draft ordinance includedCouncil. The an judge part-tune individuals the theh names of the same December 21, 1993. Committee had recommended for August Pursuant to 1995, passed and approved on appointment and to their appellants were each rea interde reappointment in the Committees positions for a subsequent two- ppomted was placed onaltheCo correspondence. The ordinance beginning on September 1, 1995. year term meetingCity Councils agenda for a to be held on August 28, 1997. [FN2] The In 1997, consistent with tape recording from the Ci prior practice, the Ci held on that date reflects that onlyn the threecil new Council appointed five of its members to comprise individuals recommended for the Municipal Court Committee were discussed in depth. Couilman full-time Edo Garza The Committee was chaired by ("the Committee"). Thees, It. Councilman Roger remarked that the Committee had assessed more The Committee met on at least six h' applicants and had narrowed the field to occasions in July and August 1997 to review and seven. Councilman *472 ed and that as a Committee member he did not ster support owledgthe discuss applicants for in judges. The new appointees because he had reservations. He reappointment as municipal court meetings were attended by the presiding municipal also stated that some changes were made with the court judge at the time, Judge Stella Ortiz Kyle. current judges serving on municipal court and Judge Kyle took notes at the Committee meetings. called it a "difficult situation." Councilman Flores The Committee meetings did not comply with the reminded the City Council that they needed eight votes to pass the ordinance as an emergency vote. notice and recording requirements of TOMA. After this discussion, Ordinance No. 86503 was In subsequent interdepartmental correspondence passed and approved by a vote of nine in favor and the Committee advised the Mayor and CityCouncil one against. [FN3] Under this ordinance, the appointments and reappointments were to run for a of the names of individuals the Committee two-year term beginning September 1, 1997 and recommended for appointment and reappointment ending August 31, 1999. The ordinance provided as municipal court judges. Specifically, the that all persons presently holding an appointed Committee recommended three new full-time position as judge but who were not listed in the judges and the reappointment of eight full-time and ordinance would not be reappointed to their office. four part-time judges. All the Committee members Appellants were not listed in the ordinance. agreed with the individuals recommended for reappointment. Councilman Jeff Webster, however, FN2. Ordinance No. 86503 contains the did not sign in support of the new appointments. In date of August 27, 1997. The summary its correspondence, the Committee requested the judgment evidence included the agenda for City Council's concurrence with its selection of a City Council meeting held on August 28, candidates by ordinance at an open meeting to be 1997. Item 40 of that agenda reflects that held on August 28, 1997. Prior to the City Council the City Council would be considering an meeting, by letter dated August 22, 1997, ordinance appointing three new full-time Councilman Flores informed appellants that the municipal court judges, and reappointing Committee had not recommended their eight full-time municipal court judges and reappointment, thanked them for their years of four part-time municipal court judges. service,and wished them well in the future. Additionally, the voting sheet reflecting each councilman's vote on Ordinance No. According to the deposition testimony of 86503 is dated August 28, 1997. Thus, it 0 2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.corn/delivery.htm IYdest=atp&format=HTMLE&dataid=B0055800000... 9/20/2005 — A rage D o1 13 123 S.W.3d 469 Page 4 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) would appear that the ordinance was The trial court granted the City's motion, ruling that actually passed and approved on August "there is no evidence or law to support the 28, 1997. Plaintiffs' allegations that the Defendant City violated the Texas Open Meetings Act." A trial was FN3. One member of City Council was held before the court on the remaining issue of absent for the vote. Councilman Webster whether appellants continued to hold office voted against passing the ordinance. pursuant to Article 16, section 17 of the Texas Constitution. The trial court entered final judgment Appellants sued the City, alleging that Ordinance in favor of the City. Appellants filed a timely appeal No. 86503 was void because all meetings of the to this court. Committee were in violation of Section 11 of the City Charter [FN4] and TOMA. Also, appellants STANDARD OF REVIEW claimed that because Ordinance No. 86503 failed to Our review of the trial court's rendition of summary name successors to their positions, they had not judgment is de novo. Reynosa v. Huff 21 S.W.3d been removed from office and their successors had 510, 512 (Tex.App.-San Antonio 2000, no pet.). not been duly appointed and qualified as required We look at the evidence in the light most favorable by Article 16, section 17 of the Texas Constitution. to the non-movant against whom the summary The City timely answered and subsequently filed a judgment was rendered, disregarding all contrary motion for partial summary judgment, asserting evidence and inferences. See Gomez v. Tri City there was no evidence "that [the] City did not do Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 something that it was legally required to do as to the (Tex.App.-San Antonio 1999, no pet.); Moore v. K City municipal court committee meeting(s) or as to Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San passing this Ordinance." Appellants responded and Antonio 1998, pet. denied). A no-evidence filed an amended original petition, alleging, among summary judgment is improperly granted if the other things, that the City Council's action was a respondent brings forth more than a *473 scintilla "rubber stamp" approval of the Committee's of probative evidence to raise a genuine issue of recommendations in violation of TOMA. material fact. Id.; see also Tex.R. Civ. P. 166a(i). Less than a scintilla of evidence exists when the FN4. Section 11 of the City Charter of San evidence is "so weak as to do no more than create a Antonio provides the following: mere surmise or suspicion" of a fact. See Kindred All meetings of the Council shall be held at v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). such times as may be prescribed by More than a scintilla of evidence exists when the ordinance or resolution; but not less than evidence "rises to a level that would enable one regular meeting shall be held each reasonable and fair-minded people to differ in their week, unless postponed for reasons to be conclusions." Merrell Dow Pharm., Inc. v. Havner, spread [sic] on the minutes which shall be 953 S.W.2d 706,711 (Tex.1997). kept of all Council meetings. Special meetings of the Council shall be called by TEXAS OPEN MEETINGS ACT the City Clerk upon the written request of [1][2] With certain exceptions, [FN5] TOMA the Mayor, the City Manager or three provides that every "regular, special, or called members of Council. All meetings of the meeting of a governmental body shall be open to Council and of any committees thereof the public." Tex. Gov't Code Ann. § 551.002 shall be in compliance with the Texas (Vernon 1994). A core purpose of TOMA is to Open Meetings Act as it may be amended enable the public to have access to the actual from time to time. decision-making process of its governmental SAN ANTONIO, TEX. CITY CHARTER, bodies. City of San Antonio v. Fourth Court of art. II, § 11. Appeals, 820 S.W.2d 762, 765 (Tex.1991); Cox Enter., Inc. v. Board of Tr. of Austin Ind. Sch. Dist., 0 2005 Thomson/Wcst.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B005 5 800000... 9/20/2005 rage a of 13 123 S.W.3d 469 Page 5 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) 706 S.W.2d 956, 960 (Tex.1986). As such, TOMA violation of TOMA under the circumstances requires "openness at every stage of a governmental presented in this case. Therefore, we are faced with body's deliberations" because the citizens of Texas a matter of first impression. In conducting our are entitled to know not only what government analysis, we will first review relevant Texas decided but also to observe how and why every Attorney General's opinions which, although are not decision is enacted. See Acker v. Tex. Water binding on an appellate court, are considered Comm'n, 790 S.W.2d 299, 300 (Tex.1990). The persuasive. Comm'rs Court of Titus County v. Agan, provisions of TOMA are mandatory and are to be 940 S.W.2d 77, 82 (Tex.1997); City of San liberally construed in favor of open government. Antonio v. Baer, 100 S.W.3d 249, 252 See Toyah Ind. Sch. Dist. v. Pecos-Barstow Ind. (Tex.App.-San Antonio 2001, no pet.). We then Sch. Dist., 466 S.W.2d 377, 380 (Tex.Civ.App.-San will consider the relevant Texas case law. Antonio 1971,no writ). *474 A. Attorney General Opinions FN5. For example, TOMA provides that a governmental body is not required to The Texas Board of Mental Health and Mental conduct an open meeting "to deliberate the Retardation (the "Board"), a state-level appointment, employment, evaluation, governmental body, asked the Texas Attorney reassignment, duties, discipline, or General in 1973 if it could divide its membership dismissal of a public officer or employee." into several subcommittees to "more efficiently Tex. Gov't Code Ann. § 551.074(a)(1) manage its affairs." Op. Tex. Att'y Gen. No. H-3 at (Vernon 1994). The City in the instant 1 (1973). The Board proposed that various case did not seek to invoke this exception. committees would meet with staff to discuss and study matters before the Board. These committee Appellants maintain summary judgment was meetings would not be open to the public, and improper because there was a genuine issue of notice regarding the meetings would not be given. material fact that the City violated TOMA in The committee recommendation would then be passing the challenged Ordinance. Appellants considered by the full Board at its open public specifically point to both the actions of the meeting. Id The question before the Attorney five-member Committee (one less than a quorum of General was whether this proposal would violate the entire City Council) which considered all TOMA. Id. at 2. While the proposed committees applicants for the office of municipal court judge in did not constitute a quorum of the full Board and closed sessions, and to the actions of the City therefore could not bind the Board, the Attorney Council which, in turn, simply "rubber-stamped" General opined that "a real danger exist[ed] that the the Committee's recommendations. Appellants full Board might become merely the 'rubber stamp' contend the process as a whole raises a fact question of one or more of its committees and thereby that the Ordinance was passed in violation of deprive public access to the effective decision TOMA. making process." Id. at 4. Citing prior attorney general opinions, the Attorney General concluded In its response, the City stresses the Ordinance was that "a committee of Board members may not meet clearly passed by the City Council in an open public privately and without complying with the meeting. Accordingly, there can be no evidence provisions" of TOMA for the purpose of that the City violated TOMA. Furthermore, the City formulating recommendations to be made to the full maintains the Municipal Court Committee was a Board.Id. at 5. proper advisory committee and not a "governmental body"subject to the requirements of TOMA. In a later opinion, the Attorney General stated opinion H-3 was based, in part, on the concern that [3] At the onset, we recognize that no Texas court "if the public were excluded from such committee of appeals has directly addressed a claimed meetings, it would be deprived of access to the 2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest—atp&format=HTMLE&dataid—BOOS 5800000... 9/20/2005 rage i or 13 123 S.W.3d 469 Page 6 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) actual decision-making process and the purpose of presence of individuals not related to the parent the Act would be thwarted." Op. Tex. Att'y Gen. governmental body diminished the danger of rubber No. H-238 at 3 (1974). The Attorney General stamping.Id. further reiterated that TOMA applies to the We think that this danger is diminished in the deliberations of committees into which a present case by the appointment of twelve other governmental entity has divided itself because they members who might represent different are an important part of the entity's decision-making viewpoints within the university system. We process. See id. According to the Attorney strongly caution, however, that should the council General, TOMA does not contemplate pro forma actually function as a committee of the Board or approval by governmental bodies of matters already as something more than an advisory body, and in privately determined by its members sitting in fact supervise or control public business or closed committee meetings. Id; see also Op. Tex. policy, it will have to comply with the Act's Att'y Gen. No. 96-116 at 4 (1996) (stating a provisions on notice and public meetings. committee constituting less than a quorum may be Id. at 2-3. subject to TOMA where the governmental body is likely to simply rubber stamp the committee's This same analysis is repeated in opinion JC-0060 recommendation). On this basis, the Attorney in which the Attorney General opined that the initial General opined that the standing committees of a work of a committee containing two members of a hospital district, when composed of members of the commissioners court and seven other individuals, governing board, must comply with notice and open which evaluated architectural firm applicants, did meeting requirements of TOMA. Op. Tex. Att'y not fall under TOMA because of its advisory nature. Gen. No. 11-238 at 4 (1974); see also Op. Tex. See Op. Tex.Att'y Gen.No.JC-0060 at 3 (1999). Att'y Gen. JM-1072 at 3-4 (1989) (committees The Evaluation Committee's mission is to compromised of one or more members of the board perform evaluations of architectural firm of trustees were subject to TOMA if they performed applicants and submit a recommendation in the functions regarding matters affecting the school form of a ranking of the firms to the district). commissioners court. As you indicate, the [c]ommittee's recommendation is not binding in In Opinion H-994, the Attorney General examined any way on the court. Even though two members both the committee's stated purpose and actual of the commissioners court are members of the practices to determine whether a committee [c]ommittee, the presence of seven other appointed by the chairman of the University of individuals attests to the likelihood that other Texas System Board of Regents was subject to viewpoints will be considered. In these TOMA. See Op. Tex. Att'y Gen. No. H-994 at 1 circumstances, the commissioners court is less (1977). In its analysis, the Attorney General noted likely to "rubber-stamp" the [c]ommittee's choice. that TOMA does apply if the committee meets to On the contrary, ... even if the [c]ommittee discuss public business or policy; but does not ranked one firm in last place, the court could apply to a purely advisory body which has no power nevertheless award that firm the contract. The to supervise or control public business. Id. at 2. [c]ommittee's initial work thus appears to be that The Attorney General then examined the resolutions of an advisory body, without power to supervise that defined the committee's powers and the or control public business. committee's actual practices to determine if Id. at 3. In that same opinion, however, other work additional authority was exercised as a matter of done by the committee to negotiate a contract with practice. Id. In addition, the Attorney General the selected firm was determined to be more than considered the committee's overall membership advisory.Id. at 3. composed of three Regents and twelve other Unlike the ranking of architectural firms in the individuals outside the governmental body. initial stage of the process, from which the According to the Attorney *475 General, the commissioners court is at liberty to select the firm ©2005 Thomson/West.No Claim to Orig. U.S. Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B0055800000... 9/20/2005 Page 8 of 13 123 S.W.3.d 469 Page 7 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) that the Evaluation Committee ranked in last maintained a permanent injunction against the place, the result of the negotiating process leaves Board of Trustees of the San Antonio Independent no room for the commissioner's input: the court School District ("SAISD") enjoining them from must either adopt or reject the contract negotiated arriving at decisions involving public business or by the Evaluation Committee. public policy affecting the SAISD by way of private Id. at 4. The Attorney General further reasoned informal meetings or telephone polls of board that if the two commissioner court members that members. Mabry sought to prevent the mailing of a served on the committee approved the terms letter to all parents residing in the SAISD advising negotiated on a contract, only one more vote would them of their voting rights and stating the message be needed from the remaining commissioner court was a service of the Board of Trustees. Id. at 793. members to adopt the privately negotiated terms. Id. The letter was drafted by the board president after at 3. Accordingly, the Attorney General held the he had conducted an informal telephone poll of the Evaluation Committee, under the facts described, board members. Id. Justice Cadena, in his dissent, was subject to TOMA.Id at 5. disagreed with the majority's decision on the basis that the circumstances presented did not give rise to Consistent with these opinions, the Attorney a violation of TOMA. General devotes a section to "Committees and Plaintiffs alleged that the use of the telephone Subcommittees of Governmental Bodies" in the polls was a conspiracy to circumvent the Open Meetings Handbook published in 2002. provisions of the Open Meetings Act.... As JOHN CORNYN, OFFICE OF THE ATTORNEY applicable to this case, the "governmental body" GENERAL-STATE OF TEXAS, OPEN which is required to meet publicly is the Board of MEETINGS HANDBOOK 14 (2002). In that Trustees, and the requirements that meetings of publication, the Attorney General begins with the that body be public applies only when a quorum general proposition that members of a governmental is present, since in the absence of a quorum there body meeting in numbers less than a quorum are not is no "meeting." Notice of deliberations is subject to TOMA. He cautions, however, that there required only where the deliberation involves a may be exceptions to that general rule including the quorum. following: Id. at 798 (Cadena, J., dissenting). Essentially, A committee or subcommittee appointed by a Justice Cadena expressed the view that a violation governmental body and *476 granted authority to of TOMA did not occur unless a quorum of the supervise or control public business or public governmental body was physically present in one policy may itself fall within the definition of place. See id Therefore, according to Justice "governmental body."(Citations omitted). Cadena, telephone polling did not involve a quorum and did not violate TOMA. Id While not expressly * * * addressed by the majority, it appears that the Even a committee or subcommittee without majority took the opposing view that the telephone formal control over public business or public polls conducted by Board members did violate policy may be deemed a governmental body TOMA. See id at 796; see also Op. Tex. Att'y subject to the act if its decisions are in fact Gen.No. DM-95 at 5(1992)(discussing Hitt). "rubber stamped" by the parent body. (Citations omitted). In Harris County Emergency Serv. Dist. No. I v. Id We next consider the relevant Texas case law. Harris County Emergency Corps, 999 S.W.2d 163 (Tex.App.-Houston [14th Dist.] 1999, no pet.), the B. Texas Cases court of appeals was faced with the issue of whether members of the Harris County Emergency Service In Hitt v. Mabry, 687 S.W.2d 791, 796 District violated TOMA, and thereby could be (Tex.Civ.App.-San Antonio 1985, no writ), this enjoined from discussing district policy or business court modified certain aspects of an injunction, but over the telephone with other board members. The ©2005 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://print.westlaw.com/delivery.html?dest—atp&format=HTMLE&dataid=B0055800000... 9/20/2005 rage i or ti 123 S.W.3d 469 Page 8 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) court held that in order for there to be a violation According to the district court, the city's argument there needed to be evidence of a "meeting" as raised the concern that "a real danger exists that the defined under TOMA. Id. at 168. The court held full city council is merely a 'rubber stamp' of the that no violation occurred where the evidence Committee." Id. at 785. Important to the district reflected that less than a quorum of the district was court's decision was the fact that it did not receive a involved in the telephone conversations. Id. at 169. clear answer to its inquiry regarding why there was The evidence also reflected that board members no quorum of the full city council. Id. at 786. The had merely discussed the matters they needed to put district court considered this circumstantial on the agenda for future meetings. Id. The evidence evidence that the committee was designed to did not show that board members were using the circumvent TOMA.Id. telephone to avoid meeting as a quorum and thereby attempting to circumvent TOMA. Id. According to Finally, in Esperanaa Peace and Justice Ctr. v. the *477 court, unlike the circumstances in Hitt, City of San Antonio, No. SA-98-0696-OG, 2001 there was "no evidence that the district members WL 685795, at *30 (W.D.Tex. May 15, 2001), the were attempting to circumvent TOMA by mayor of San Antonio met with several city council conducting telephone polls with each other." Id members and spoke with others on the phone in the Accordingly, the court held the provision of the City Manager's office regarding the city budget the injunction prohibiting board members from night before an open city council meeting. The discussing policy or business over the telephone evidence reflected that the participants in these with other board members was too broad.Id discussions carefully avoided the physical presence of a quorum of city council. Id. For example, on In Finlan v. City of Dallas, 888 F.Supp. 779 several occasions, the City Manager informed the (N.D.Tex.1995), the federal district court addressed group that there were too many people together and whether TOMA covered an ad hoc committee of the that they risked violating TOMA. Id. In response, Dallas City Council. In that case, the federal one or more city council members would leave the district court enjoined the Downtown Sports office. Id. The discussions led to a unanimous Development Committee from meeting in closed agreement encompassed in a consensus sessions with third parties. The committee memorandum regarding the city budget changes. Id. consisted of five city council members who met at *31. All council members signed the draft with constituents for the purpose of negotiating the consensus memorandum to be considered at the establishment of a new arena. Id. at 781-82. Nine open city council meeting. Id. While the members council members constituted a quorum of the city understood that the memorandum was not binding, council. Id. The evidence considered by the district no amendments were offered and no debate court in enjoining the city council included the city occurred at the open meeting. Id. The budget council's own rules that provided the committees adopted essentially reflected the agreement in the were subject to TOMA with no exception made for consensus memorandum.Id ad hoc committees. Id. at 784. This led the district court to conclude that the city treated the ad hoc The City argued that no violation of TOMA committee as a governmental body. On this basis, occurred because a quorum was never present in the the district court rejected the city's argument that City Manager's office. Id. at *32. The district court the committee did not constitute a quorum of city disapproved of this argument by stating, in part, the council, noting that only three members were following: needed to make a quorum of the committee. Id. *478 If a governmental body may circumvent the With five members of the committee in favor of an Act's requirements by "walking quorums" or arena, as well as the Mayor who appointed them, serial meetings of less than a quorum, and then only two more votes would be needed from the ratify at a public meeting the votes already taken remaining members of city council to agree to the in private, it would violate the spirit of the Act deal negotiated by the committee. Id. at 786. and would render an unreasonable result that was ©2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format—I ITMLE&dataid-80055800000... 9/20/2005 Page 10 of 13 123 S.W.3d 469 Page 9 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) not intended by the Texas legislature. Thus, a only a "meeting" of a governmental body to be open meeting of less than a quorum is not a "meeting" to the public. According to the City, the members within the Act when there is no intent to avoid the of the Committee did not engage in a "meeting" as Act's requirements. On the other hand, the Act that term is defined since it is undisputed the would apply to meetings of groups of less than a Committee was made up of less than a quorum of quorum where a quorum or more of a body the City Council. See Tex. Gov't Code Ann. § attempted to avoid the purposes of the Act by 551.001(4) (Vernon 1994) (defining "meeting" as a deliberately meeting in groups less than a deliberation between a quorum of a governmental quorum in closed sessions to discuss and/or body). In essence, the City would have us find that deliberate public business, and then rating meetings are required to be public only when a their actions as a quorum in a subsequent public quorum is present, since in the absence of a quorum meeting. there is no"meeting." We disagree. Id. at *35 (emphasis added). The district court then assessed whether the evidence established an [5][6] Contrary to the City's position, a intentional violation of TOMA. The district court governmental body does not always insulate itself considered the fact that the mayor met with council from TOMA's application simply because less than members constituting less than a quorum to reach a a quorum of the parent body is present. Esperanza conclusion; the City Manager kept track of the Peace and Justice Ctr., 2001 WL 685795, at *30; number of council members present so as to avoid a Finlan, 888 F.Supp. at 782 & 785 (N.D.Tex.1995); formal quorum; the consensus reached was Hitt, 687 S.W.2d at 796; JOHN CORNYN, memorialized in a memorandum containing the OFFICE OF THE ATTORNEY signatures of each council member; and the GENERAL-STATE OF t'EXAS, OPEN consensus was "manifested" when adopted at an MEETINGS HANDBOOK 14 (2002). A open meeting. Id. In light of this evidence, the committee appointed by a governmental body district court concluded "a clearer manifestation of constituting less than a quorum of its members may intent to reach a decision in private to avoid the be subject to TOMA because it falls either within a technical requirements of the Act [could] hardly be definition of the term "governmental body" or as a imagined."Id subcommittee of a governmental body. *479See Op. Tex. Att'y Gen. No. JC-0060 at 3 (1999). C. Analysis Accordingly, we reject the City's strict reading of the definition of"meeting" under TOMA, because it [4] Appellants argue summary judgment was would be contrary to our mandate to liberally improper because there was a genuine issue of construe TOMA's provisions in order to safeguard material fact that the City violated TOMA in the public's interest in open government. See Acker, passing the challenged Ordinance. The City 790 S.W.2d at 300. Furthermore, our conclusion'is maintains the summary judgment was proper consistent with the language in section 551.143(a) because it is undisputed that the attacked ordinance which specifically prohibits members of a was passed in an open meeting by the only governmental body from knowingly conspiring to governmental body of the City of San Antonio, the circumvent TOMA by meeting in numbers less than City Council. Furthermore, the City argues the a quorum. "Indeed it would appear that the municipal court committee was not required to legislature intended expressly to reach deliberate comply with open meeting requirements of TOMA evasions of these definitions in enacting [section because it was not a governmental body under the 551.143(a)]." Op. Tex. Att'y Gen. No. DM-95 at 5 Act, but was a proper and necessary advisory (1992); see Op. Tex. Att'y Gen. No. JC-0307 at 5-6 committee allowed under the City Charter. (2000). In support of its arguments, the City stresses that [7] The City also argues that the Municipal Court TOMA relies heavily on defined terms, and requires Committee is not a "governmental body" as defined ©2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B005 5 800000... 9/20/2005 rage ttori.s 123 S.W.3d 469 Page 10 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) under TOMA because it is not "a deliberative body have six people. You can only have five. that has rule making authority or quasi-judicial Otherwise it would be I guess like having a power." Tex. Gov't Code Ann. § 551.001(3)(D) meeting of Council. (Vernon 1994). The City points to the City Charter Q: In other words, if they had a committee of six, which provides that the City Council may create under your recollection of it, it would then have boards and committees to assist it in an advisory to abide by the provisions of the Open Meeting[s] capacity in the performance of its duties. See San Statute. Antonio, Tex. City Charter, art. V, § 49. We agree A: Right. Yeah.Exactly. with the City that the definition of a governmental Q: I don't mean to be putting words in your body generally comprehends an entity with the mouth. power to supervise or control public business. We A. No. But that's right. Because you couldn't also agree that the City Charter of San Antonio hold a meeting with six people because then that enables the City Council to create committees to would be a violation. Exactly. assist it in a purely advisory capacity. [FN6] The Q: Unless there was a public notice and agenda critical issue before us, however, is whether the and all that and everything published? evidence presented at summary judgment raises a *480 A. Right. Like we do for the City Council question of fact that the Committee was more than meetings. an advisory committee in actual practice and, thus, Councilman Flores's testimony regarding the subject to the open meeting requirements of TOMA. composition of the Committee could be viewed one of two ways. Councilman Flores's testimony could FN6. We recognize that in Fin/an, the trial be construed as merely his understanding of court considered the fact that the City TOMA. On the other hand, his testimony could also Charter of Dallas required council be construed as an attempt by City Council to avoid committee meetings to be open and that the presence of a quorum and, therefore, avoid the city council's rules of procedure application of TOMA to Committee meetings. mandated that committee meetings must be conducted in accordance with TOMA. 888 The evidence also shows the Committee was made F.Supp. at 784. Similarly, in this case, up exclusively of city council members who met on section 11 of Article II of the City Charter several occasions to review the applicants for provides that meetings of any committees municipal court judges. Notice was not posted of the City Council must be in compliance regarding the Committee's meetings, and tape with TOMA. In this case, however, we do recordings were not made. After assessing the not consider section 11 of the San Antonio various applicants for appointment and City Charter to be evidence in support of reappointment, the Committee compiled a list of appellants' position because the section individuals recommended for the position of was not presented as evidence for the trial municipal court judges in the form of a draft court to consider. ordinance to be voted on at an open meeting of the City Council. Letters informing appellants they It is undisputed that the Committee was established were not recommended for reappointment, thanking by the City Council. According to Councilman them for their years of service, and wishing them Flores, the Committee consisted of five members well in the future were sent out six days before the because the City Council would be in violation of City Council's vote on Ordinance No. 86503. At TOMA if it had six members. When asked in the open meeting, the Committee's deposition why the Committee consisted of five recommendations were approved without members,Councilman Flores responded as follows: meaningful discussion by the City Council. The Q: Why were there only five? tape recording for the City Council meeting held on A: Five? Usually that's the--that was the way that August 28, 1997, begins with the Mayor ordering the committees were set up. Because you can't "up and quickly" agenda item number 40, which 2005 Thomson/West.No Claim to Orig. T_I S. Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid—B0055800000... 9/20/2005 rage 12 of 13 123 S.W.3d 469 Page 11 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) was the draft of Ordinance No. 86503. There was facts, including the following: (1) no specific*481 no discussion regarding all the individuals who had individuals were named as appellants' successors; applied and reapplied for appointment, the (2) appellants were not removed from office for individuals who were not recommended, or the cause as provided by the Texas Government Code; criteria the Committee used in determining its (3) appellants did not give the City a notice of recommendations. Instead, the discussion centered resignation; and (4) the City has not passed or on the three new individuals recommended for approved an ordinance that abolished the municipal full-time appointments. Finally, there was evidence court offices held by appellants. Additionally, the City Council had consistently passed and Ordinance No. 86503 did not specifically name approved the Committee's recommendations appellants as being removed. Appellants contend without change from July 1990 through November that under these facts they remain municipal court 1998. judges as required by the Texas Constitution and the City Charter. Arguably, the evidence suggests pro forma public approval or "rubber stamping" by the City Council In asserting that the trial court erred in refusing to of matters already determined by the Committee find Ordinance No. 86503 violates the Texas sitting in closed meetings which the Attorney Constitution and the City Charter, appellants appear General and Texas courts have warned can violate to be challenging the trial court's conclusion of law. TOMA. See Finlan, 888 F.Supp. at 785-86; Op. We review questions of law under a de novo Tex. Att'y Gen. No. JC-0060 at 3-5 (1999); Op. standard of review without deference to the trial Tex. Att'y Gen. No. H-238 at 3 (1974); JOHN court's conclusion. See Interstate Northborough CORNYN, OFFICE OF THE ATTORNEY P'ship v. State, 66 S.W.3d 213, 220 (Tex.2001); GENERAL-STATE OF TEXAS, OPEN State v. Heal, 917 S.W.2d 6,9(Tex.1996). MEETINGS HANDBOOK 14 (2002). The letters informing appellants they would not be reappointed [9][10][11] Under Section 160 of the City Charter suggest an assumption by the Committee that its of San Antonio, officers are to hold over until their decision was final and, therefore, not advisory. successors are appointed and qualified. Further, there was no substantive discussion Whenever under the provisions of this Charter regarding the various applicants at the open any officer of the City, judge or member of any meeting. Finally, there was a pattern of the City board or commission is appointed for a fixed Council consistently passing and approving the term, such officer, judge or member shall Committee's recommendations for municipal court continue to hold office until his successor is judges over an eight-year period. In light of our appointed and qualified. standard of review, we conclude the evidence rises SAN ANTONIO, TEX. CITY CHARTER art. to the level that would enable reasonable and XII, § 160. The Texas Constitution states that "all fair-minded people to differ in their conclusions. officers within the State shall continue to perform the duties of their offices until their successors shall Accordingly, we hold the trial court erred in be duly qualified." TEX. CONST. art. XVI, § 17. granting the City's no-evidence motion for partial The commentary to this section provides that this summary judgment. We sustain appellants' first provision was placed in the Texas Constitution, in four issues. part, to "prevent public convenience from suffering because of a vacancy in the office...." TEX. Article 16,Section 17 of the Texas Constitution CONST. art. XVI, § 17 interp. commentary [8] Appellants also argue that the wording of (Vernon 1993); see also Plains Common Consol. Ordinance No. 86503 violates Article 16, section Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 377., 326 17 of the Texas Constitution and section 160 of the (Tex.Civ.App.-Amarillo 1938, no writ). Even City Charter. The parties went to trial on these where an officer resigns, under this section, he or claims. At trial, the parties stipulated to certain she is held over in the performance of their duties ©2005 Thomson/West.No Claim to Orig. U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=BOOS 5 800000... 9/20/2005 ragi 1.. vi 1_3 123 S.W.3d 469 • Page 12 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) until a successor is elected or appointed and has We hold that appellants presented sufficient been qualified. See Op. Tex. Att'y Gen. H-161 at 2 evidence to raise a genuine issue of material fact on (1973). This holdover provision becomes operative their claim that the City violated the Texas Open only after the officer's term has expired. Op. Tex. Meetings Act in passing and approving Ordinance Att'y Gen. JC-0293 at 3 (2000). On the other hand, No. 86503. We also hold, that the trial court did the right to holdover does not reside in one who has not err in concluding that Ordinance No. 86503 been removed from office. See Manning v. Harlan, does not violate Article 16, section 17 of the Texas 122 S.W.2d 704, 707 (Tex.Civ.App.-E1 Paso 1938, Constitution. We reverse the trial court's judgment writ dism'd). Ordinance No. 86503 effectively as to appellants' claim under the Texas Open removed appellants from office. Because appellants Meetings Act and remand that claim to the trial were removed from office, Article 16, section 17 court for further proceedings consistent with this does not apply to the instant circumstances. The opinion. We affirm the trial court's judgment in all facts, as agreed to by the parties, reflect that there other respects. were the same number of judges after appellants' terms had expired as there were when appellants 123 S.W.3d 469 were in office. Therefore, no vacancy occurred in the office of municipal court judge that resulted in public inconvenience to warrant the application of Briefs and Other Related Documents(Back to Article 16, section 17 of the Texas Constitution. top) [FN7) • 04-02-00853-CV (Docket) FN7. By asking this court to hold that (Nov.21,2002) Ordinance No. 86503 violates Article 16, section 17 of Texas Constitution, END OF DOCUMENT appellants are asking us to hold that this provision prohibits a governmental entity from removing an officer from office. However, appellants do not cite nor can we find case law to suggest that section 17 prohibits a governmental body from removing an officer from office. Additionally, appellants argue that Ordinance No. 86503 violates Article 16, section 17 because successors were not specifically named as replacing them. While Article 16, section 17 contemplates that a successor be "duly qualified," it does not expressly state that this means successors must be specifically named. We refuse to read into this provision such a requirement. *482 Because we hold that Article 16, section 17 of the Texas Constitution does not apply to the circumstances presented, we overrule appellants' fifth and sixth issues. CONCLUSION ©2005 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B005 5 800000... 9/20/2005 • Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. M16 Congress ksenue Suite 1700 Austin,Texas 78701 (512)4728021 Fax(512)320-5638 www-bickerstaff.com May 27,2005 CLIENTS AND FRIENDS OF BICKERSTAFF, HEATH,SMILEY,POLLAN, KEVER& MCDANIEL, L.L.P.: In the past few days there have been two significant developments in Texas open meetings jurisprudence that affect all members of governmental boards in the state. During the thirty-plus years I have worked with the Open Meetings Act, including six years as chair of the Attorney General's Opinion Committee where open meetings issues were constantly presented,one of the major concerns was how much one-on-one discussion of public issues among board members was permissible before it crossed the line separating what is and is not permissible under the Act. The Attorney General and an East Texas grand jury have spoken on that question in the past two weeks. In Attorney General Opinion No. GA-326, which was issued on May 18,Attorney General Abbott determined that a county commissioner who made separate telephone calls to two other members of the commissioners court to urge them to support a particular proposal (and thus, counting himself,reached a quorum of the court)could be guilty of a criminal violation of the Act. Addressing the same issue,on May 24 an Upshur County Grand Jury indicted a school board president for conspiring to circumvent the provisions of the Act by meeting in numbers of less than a quorum. The case was brought by the Attorney General at the request of the local district attorney. The Attorney General states that the indictment stems from private conversations the board president had with several board members to gauge their support for a severance package to be offered to the superintendent. I am enclosing a copy of the opinion and the indictment for your information. Board members who discuss governmental issues outside of a posted meeting must be careful to be sure that they do not inadvertently violate the criminal provisions of the Act. Technological innovations such as e-mail,which permits us to reach every member of a group simultaneously and leaves an electronic record on the communication,raise special problems and dangers. I hope these documents will assist you to avoid those pitfalls. If you have any questions about this issue, please do not hesitate to contact me or other members of the firm. Sincerely, / le, /� c.,j obert 'eath let, ATTORNEY GENERAL OP TEXAS GREG ABBOTT May 18,2005 The Honorable Tom Maness Opinion No. GA-0326 Jefferson County Criminal District Attorney 1001 Pearl Street,3rd Floor Re: Proper construction of Government Code Beaumont,Texas 77701-3545 section 551.143 and whether it is unconstitutionally vague (RQ-0291-GA) Dear Mr.Maness: You ask about the proper construction of section 551.143 of the Government Code and whether it is unconstitutionally vague) 1. Background Section 551.143,an Open Meetings Act enforcement provision,reads in relevant part: (a) A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter. (b) An offense under Subsection(a)is a misdemeanor. . . . TEx.GOV'T CODE ANN. § 551.143 (Vernon 2004);see also Open Meetings Act(the"OMA"),id. §§ 551.001-.146(Vernon 2004&Supp.2004-05). You observe that in the past two years your office has conducted two investigations into allegations that public officialswithin yourjurisdiction violated section 551.143.See Request Letter, supra note 1,at 1. Although the allegations did not lead to criminal prosecution,you are nonetheless concerned about the substantial disagreement among interested parties regarding the provision's correct construction and constitutionality. Id. 'Letter from Honorable Torn Maness,Jefferson County Criminal District Attorney,to Honorable Greg Abbott, Texas Attorney General(Nov.3,2004)(on file with Opinion Committee,also available at http://www.oag.state.bc.us) [hereinafter Request Letter]. The Honorable Tom Maness - Page 2 (GA-0326) Specifically,you note that"the problem in interpretation arises in part from the definitions section of the[OMA],"which you suggest renders section 551.143 meaningless. Id. at 2;see also TEX.GOV'TCODEANN.§551.001(Vernon Supp.2004-05). Section 551.143 criminalizes"meeting in numbers less than a quorum for the purpose of secret deliberations."See TEX.Gov'T CODE ANN. §551.143(a)(Vernon 2004)(emphasis added). The provision,however,does not define these terms separately for its purposes and therefore relies on section 551.001,the general OMA definitional provision, to supply the definitions. And section 551.001 defines"meeting"and "deliberation"in terms of a governmental body quorum. See Request Letter,supra note 1, at 2; TEX.GOV'T CODE ANN. § 551.001(2), (4)(Vernon Supp. 2004-05).2 Thus, you consider section 551.143 defective because on its face it would be impossible for individuals to meet or deliberate in groups less than a quorum to knowingly circumvent the Open Meetings Act. See Request Letter,supra note 1,at 2-3. 2a'Deltberation'means a verbal exchange during a meeting between a quorum of a governmental body,or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business." TEX.GOV'T CODE ANN.§551.001(2)(Vernon Supp.2004-05)(emphasis added). And"meeting"is defined as: (A)A deliberation between a quorum of a governmental body,or between a quorum of a governmental body and another person,during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action;or (B)except as otherwise provided by this subdivision,a gathering: (i) that is conducted by the governmental body or for which the governmental body is responsible; (ii) at which a quorum of members of the governmental body is present; (iii)that has been called by the governmental body;and (iv) at which the members receive information from,give information to, ask questions of, or receive questions from any third person, blit including an employee of the governmental body,aboutthepublic business or public policy over which the governmental body has supervision or control. The term does not include the gathering of a quorum of a governmental body at a social function unrelated to the public business that is conducted by the body,or the attendance by a quorum of a governmental body at a regional, state, or national convention or workshop, if formal action is not taken and any discussion of public business is incidental to the social function, convention, or workshop. The term includes a session of a governmental body. Id.§551.001(4)(emphasis added). The Honorable Tom Maness - Page 3 (GA-0326) • In light of its apparent circularity,you ask that we apply section 551.143 to a hypothetical situation in which,with the requisite culpable mental state,a county commissioner makes successive telephone calls to other members of the commissioners court to discuss public matters and to urge that the other members vote on those matters in a certain way. See id. at 3. IL Analysis A. Proper Construction of Section 551.143 To answer your questions,we return to section 551.143 and note that a violation is dependent on proof of the presence of an actor or actors, subject to the OMA, who knowingly conspire to circumvent the act's requirements by meeting in numbers less than a quorum for the purpose of secret deliberations. See TEx.GOVT CODE ANN. §551.143(a)(Vernon 2004). Because it is the phrase"meeting in numbers less than a quorum for the purpose of secret deliberations"about which you express concern,we focus on its meaning. In construing a statute we are charged with determining and giving effect to the legislature's intent. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). This is accomplished by establishing the "plain and common meaning of the statute's words." Id. Generally, if a statute's meaning is unambiguous, we interpret the statute according to its plain meaning. Id. Furthermore,we presume that,inter alia,a statute is constitutional and that a result feasible of execution is intended. See TEX.GOV'T CODE ANN. § 311.021 (Vernon 2005). Initially,and important to this analysis,we agree with you that"meeting"in section 551.143 is not defined by the OMA's general definition of the term. See Request Letter,supra note 1,at 2; TEX.GOV'T CODE ANN.§§551.143(a)(Vernon 2004), 551.001(4)(Vernon Supp.2004-05). That is, the section 551.001 definition of"meeting" as a noun does not apply here because section 551.143 employs the word as a verb. See Request Letter,supra note 1,at 2;TEX.GOV'T CODE ANN. §§551.143(a)(Vernon 2004),551.001(4)(Vernon Supp. 2004-05). Thus,the phrase"meeting in numbers less than a quorum" does not present a legal dilemma because the plain meaning of "meeting"as a verb does not require a quorum.' Furthermore,we read"meeting in numbers less than a quorum"to have a particular meaning that does not render the provision circular. The OMA does not require that governmental body members be in each other's physical presence to constitute a quorum. See TEX.GOV'T CODE ANN.§551.001(6)(Vernon Supp.2004-05) (defining"quorum"simply as a majority of a governmental body).• As such,we construe section 551.143 to apply to members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who,through successive gatherings,secretly discuss apublic matter with a quorum of that body. In essence,it means"a daisy chain of members the sum of whom 'See, e.g., THE NEW OXFORD AMERICAN DICTIONARY 1063(2001) (defining"meet"as to "come into the presence or company of(someone)by chance or arrangement"). The Honorable Tom Maness - Page 4 (GA-0326) constitute a quorum"'that meets for secret deliberations. Under this construction,"deliberations" as used in section 551.143 is consistent with its definition in section 551.001 because"meeting in numbers less than a quorum"describes a method of forming a quorum, and a quorum formed this way may hold deliberations like any other quorum,see id. § 551.001(2). This construction is discernible from a plain reading of the provision. Moreover,because your alternative understanding of this phrase renders the provision fatally defective,and because it is contrary to the presumption that the legislature intended a result feasible of execution,we believe section 551.143's proper construction is the one we describe here. And, also important, our construction comports with past opinions from this office and judicial decisions that have addressed similar issues. As a general matter, Texas civil courts, in construing the OMA, rely on the OMA's core purpose,which is to guarantee access to the actual decision-making process of governmental bodies. See Esperanza Peace&Justice Ctr. v. City of San Antonio,316 F. Supp. 2d 433,472(W.D.Tex. 2001). As such, the civil courts construe the OMA's provisions liberally in favor of open government. See id. Furthermore, "(w]hen a majority of a public decisionmaking body is considering a pending issue, there can be no 'informal' discussion. There is either formal consideration of a matter in compliance with the Open Meetings Act or an illegal meeting." Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300(Tex. 1990). With these as its guiding principles,the federal district court in Esperanza found that in a civil context"meeting in numbers less than a quorum for the purpose of secret deliberations"refers to a quorum or more of a body that attempts to avoid the OMA's purposes by deliberately meeting in numbers physically less than a quorum in closed sessions to discuss public business and then ratifying its actions in a physical gathering of the quorum in a subsequent sham public meeting. See Esperanza,316 F.Supp.2d at 473,476;accord Willmann v. City of San Antonio, 123 S.W.3d 469, 478(Tex.App.—San Antonio 2003,pet.denied);Tex.Att'y Gen.Op.No.JC-0307(2000)at 8;Tex. Att'y Gen. LO-95-055, at 4; Tex. Att'y Gen. Op. No. DM-95 (1992) at 4; see generally Hitt v. Mabry,687 S.W.2d 791,794(Tex. App.—San Antonio 1985,no writ). In Esperanza,San Antonio city council members passed around a consensus memorandum on the city's budget,which a number of council members equaling at least a quorum signed individually, and then adopted the budget reflected in the memorandum at an open meeting without discussing the memorandum's contents. The court concluded that the council's actions concerning the budget were void because they constituted a meeting held in violation of the OMA. See Esperanza,316 F.Supp.2d at 478;see also TEX.GOV'T CODE ANN. § 551.141 (Vernon 2004)("An action taken by a governmental body in violation of this chapter is voidable."). In direct consideration of section 551.143,this office has also relied on a definition similar to the one outlined here to conclude that a governmental body's actions in avoiding the technical 'Brief from Joseph R.Larsen,Attorney at Law,Ogden,Gibson,White,Broocks&Longoria,L.L.P.,to Office of the Attorney General at 2(Jan.24,2005)(filed on behalf of the Freedom of Information Foundation)(on file with Opinion Committee). The Honorable Tom Maness - Page 5 (GA-0326) definitions of "meeting" and "deliberation" were nonetheless meetings under the OMA. See generally Tex. Att'y Gen.. Op.Nos. JC-0307(2000),DM-95 (1992);Tex.Att'y Gen.LO-95-055. In Attorney General Opinion DM-95, this office considered whether members of a governmental body would violate section 551.143's statutory predecessor if they, without ever creating a physical quorum, signed a letter on matters relevant to public business and then did not meet to take action on the matters in open session. The opinion concluded that "the physical presence of a quorum in a single place at the same time is not always necessary for violation of[the OMA] to occur. Avoiding the technical definition of'meeting'or'deliberation' is not, therefore, a foolproof insulator from the effect of the act." Tex. Att'y Gen. Op. No. DM-95 (1992) at 5. Moreover,"it would appear the legislature intended expressly to reach deliberate evasions of these definitions in enacting section 4(b)[section 551.143's statutory predecessor]of the act."Id.;accord Tex.Att'y Gen. LO-95-055,at 3-4. In Attorney General Opinion JC-0307,this office again considered section 551.143 and its proper construction. In that opinion,this office was asked whether a third party could violate section 551.143 by enticing members of a body to meet in numbers of less than a quorum for purposes of circumventing the OMA. Relevant to your question, this office,before considering the ultimate question in that opinion, considered whether a governmental body member could violate section 551.143 by enlisting a non-member to facilitate secret deliberations between members. See Tex. Att'y Gen.Op.No.JC-0307(2000)at 4. The opinion,relying on DM-95,concluded that"[b]ecause the[OMA]has been construed to apply to situations in which members of a governmental body act as a body but are not in each other's physical presence,"such a violation of section 551.143 was possible. Id. Further,the federal district court in Esperanza and the Texas appellate court in Willmann v. City of San Antonio relied on these attorney general opinions to hold that in the civil context the OMA is applicable to a governmental body that takes action without a public meeting,even though it avoids the technical definitions of"meeting"and"deliberation." See Esperanza,316 F.Supp.2d at 473; Willmann, 123 S.W.3d at 479. And though neither opinion construed section 551.143 in a criminal context,both concluded that'it would appear that the legislature intended expressly to reach deliberate evasions ofthese definitions in enacting[section 551.143].'" Willmann,123 S.Wad at 479(quoting Tex.Att'y Gen. Op. No.DM-95 (1992)at 5);Esperanza, 316 F. Supp. 2d at 473 (quoting Tex.Att'y Gen.LO-95-055,at 4). These courts'construction of"meeting in numbers less than a quorum"as applying to,for example,a`walking quorum"5 is consistent with our construction and is consistent with the OMA's definition of"meeting"and"deliberation." Returning to your hypothetical, you ask that we apply section 551.143 to the following hypothetical situation: Commissioner A makes successive telephone calls to Commissioner B and the County Judge. During these conversations Commissioner 'See Willmann, 123 S.W.3d at 478. The Honorable Tom Maness - Page 6 (GA-0326) A discusses a matter which has already been posted for the next regularly scheduled Commissioners'Court meeting and urges either directly or impliedly that Commissioner B and the CountyJudge vote in a certain way. Request Letter,supra note 1,at 3. Generally,three members of the commissioners court constitute a quorum,see TEX.Loc.Gov'T CODE ANN.§81.006(a)(Vernon 1999),and we assume that in this opinion the hypothetical county commissioners and county judge would constitute a quorum. On the hypothetical's face,without more, we would not be able to answer your question conclusively. Commissioner A appears to violate the statute because he seems to be operating with the requisite culpable mental state and is in fact meeting with a quorum of the commissioners court to secretly discuss public matters. However,proof of his culpable mental state is a fact question the resolution of which is not appropriate to the opinion process. See Tex.Att'y Gen.Op.No.GA-0156 (2004)at 10. Furthermore,whether Commissioner B and the County Judge committed a crime is likewise a fact question dependent on proof of their culpable mental state,and the facts described on the face of this hypothetical are insufficient for us to determine as a matter of law that Commissioner B or the County Judge has violated the statute. You ask us,nevertheless, to assume that the commissioners and county judge knowingly conspired to circumvent the OMA. See Request Letter, supra note 1, at 3. Based on such assumptions,because they,in effect,achieved a quorum and held secret deliberations with the intent to avoid an open meeting,Commissioner A,Commissioner B,and the County Judge appear to have violated section 55I.143. Cf Harris County Emergency Serv. Dist. No. 1 v. Harris County Emergency Corps, 999 S.W.2d 163, 169 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (no evidence that the members were attempting to circumvent the OMA by using telephone to avoid a quorum). B. Section 551.143's Constitutionality You also ask whether section 551.143 is unconstitutionally vague on its face. See Request Letter,supra note 1,at 3. Generally,the void-for-vagueness doctrine"requires that a penal statute define the criminal offense with such definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citations omitted). Still, "[a] provision need not...be cast in terms that are mathematically precise;it need only give fair warning of the conduct prescribed,in light of common understanding and practices." State v. Garcia,823 S.W.2d 793,798(Tex.App.—San Antonio 1992,writ ref d). And while the doctrine speaks in terms of actual notice to citizens, its important aspect is "the requirement that a legislature establish minimal guidelines to govern law enforcement." Kolender,461 U.S.at 358.(citations omitted). A court, moreover, must evaluate a facial challenge to a state law by"consider[ing] any limiting construction that a state court or enforcement agency has proffered." Id. at 355 (citations and internal quotes omitted). The Honorable Tom Maness - Page 7 (GA-0326) Here,the activity made illegal by section 551.143 is quite definite on its face. The Penal Code's definition of"knowingly"applies to section 551.143 because the OMA does not provide a definition of this culpable mental state. See TEX.PEN.CODE ANN. § 1.03(b)(Vernon 2003). Penal Code section 6.03(b)states that [a] person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly,or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b); see also Tovar v. State, 978 S.W.2d 584, 586-87 (construing "knowingly"in the context of Government Code section 551.144). And"meeting in numbers less than a quorum for the purpose of secret deliberations"has been understood by civil courts and this office to apply to members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body. See supra pp. 3-6. Because section 551.143's meaning is plain,it provides adequate notice and does not allow for arbitrary enforcement. Consequently, we conclude that this section is not unconstitutionally vague. The Honorable Tom Maness - Page 8 (GA-0326) SUMMARY Members of a governmental body who knowingly conspire to gather in numbers that do not physically constitute a quorum at any one time but who through successive gatherings secretly discuss a public matter with a quorum of that body violate section 551.143 of the Open Meetings Act. This section is not on its face void for vagueness. Very trul yours, ' REG •11: OTT Attorney eneral of Texas BARRY R.MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S.FULLER Chair,Opinion Committee Daniel C. Bradford Assistant Attorney General,Opinion Committee DATE OF INDICTMENT May 24,2005 CAUSE NO. 1 3,2 `f5 THE STATE OF TEXAS OFFENSE CONSPIRING TO CIRCUMVENT THE OPEN MEETINGS ACT (Official Misconduct) VS. Tex.Gov't.Code§551.143 Misdemeanor ;{ 0- ;' JOHN w 'R1.F.VMOORE,II I - -=:---,1 r_ _.i, T,T, -.0 :-,:-7.--_,7) r' T r , :.tom ..0 c o --ti CA INDICTMENT IN THE NAME AND BY THJ.AUTHORITY OF THE STATE OF TEXAS: COUNT 1 THE GRAND JURORS for Upshur County,Texas,duly organized as such at the December Term,A.D., 2004, of the 115'h District Court of Upshur County,Texas, upon oath in said Court present that in Upshur County, Texas, JOHN WESLEY MOORE, II, hereafter styled the Defendant, on or about May 17, 2004 and prior to the filing of this indictment, a member of a government body,to-wit:a trustee of the New Diana Independent School District Board ofTrustees, knowingly conspired to circumvent Chapter 551 of the Texas Government Code by meeting in a number less than a quorum for the purpose of secret deliberation in violation of Chapter 551 of the Texas Government Code, additionally, Defendant was elected to serve as an officer of the New Diana Independent School District when this offense occurred and Defendant was acting in his official capacity as a trustee. AGAINST THE PEACE AND DIGNITY OF THE STATE. " -------- ______— FOREMAN OF THE GRAND JURY CITY OF COLLEGE STATION PARKS AND RECREATION ADVISORY BOARD ABSENCE REQUEST FORM FOR ELECTED AND APPOINTED OFFICERS I will not be in attendance at thebeLeAmt-424,.. 1-3 IO O S Q.� _ t meeting of the Parks and Recreation Advisory Board for the reason(s) specified: 11.11111111111 i}ate 12ec'cl IIIIIIMIIIIIII dd • t a--5Y ( S ' r7 co-rt7 (26,40e b! _ g it i la- Li -os -1,4,044f2_ ai/th-e..„0._..) ces t • do, i (, , A Signature Requests for Absence must be submitted to the Parks Staff Assistant at 764-3414 prior to the meeting date. C'1 City of College Station Absence Request Form For Elected and Appointed Officers ' /iceand/egs Name �/j�/� Request Submitted on fl I will not be in attendance at the meeting of Dec, 1 . for the reason(s) specified: (Date)" vteah(91 Signature This request shall be submitted to the office of the City Secretary or Board Secretary one week prior to meeting date. o:councWabsenreq.d,,c Pam Springfield Re: Draft November Parks Board Minutes &December's Agenda Page 1 From: Jodi Warner<jodiwarner@gmail.com> To: Pam Springfield <Pspringfield@cstx.gov> Date: 12/6/2005 11:17:05 AM Subject: Re: Draft November Parks Board Minutes & December's Agenda Pam, Please present my request for absence due to a scheduling conflict. Also, please wish everyone a Merry Christmas on my behalf and I look forward to our next meeting. Thank you, Jodi Warner On 12/6/05, Pam Springfield <Pspringfield@cstx.gov>wrote: > Good Morning! >Attached please find the draft minutes from the November regular > meeting of the Parks and Recreation Advisory Board. I have attached the > agenda for next Tuesday's December meeting as well. > If you haven't already notified me of your availability for this > meeting, please do so for quorum purposes. > Thank you! > Pamela Springfield > Staff Assistant > College Station Parks & Recreation Department > (979) 764-3414 > pspringfield@cstx.gov > College Station. Heart of the Research Valley. Blessings! Jodi Warner C 229.8802 Pam Springfield-RE: Draft November Parks Board Minutes&December's Agenda - - 1 From: "Byron Blaschke"<bblaschke@cox.net> To: "Pam S ' <psornofield@ootx.gov> Date: 12/8/2O054:36:51 PM Subject: RE: Draft November Parks Board Minutes& December's Agenda I will not be able to attend the meeting on Tuesday. Have a Merry Christmas and I will see you in the new year. Carol -----OriginalK8 From: Pam Springfield [mailto:Pspringfield©cstx.gov] Sent: Tuesday, December 06, 2005 11:11 AM To: Erwin; Harry Green; Jodi Warner; 'o ~obon0�tar�u. �u|lenn schroeder; Gary no\ Blaschke; Kathleen Ireland; Jeannie McCandless; Gary Thomas Cc: Curtis Bingham; David Gerling; David Wood; Glenn Brown; Lance Jackson; Marci Rodgers; Peter Lamont; Pete Vanecek; Ross Albrecht; Ric Ploeger; Steve Beachy Subject: Draft November Parks Board Minutes & December's Agenda Good Morning! Attached please find the draft minutes from the November regular meeting of the Parks and Recreation Advisory Board. I have attached the agenda for next Tuesday's December meeting as well. If you haven't already notified me of your availability for this meeting, please do so for quorum purposes. Thank you! Pamela Springfield Staff Assistant College Station Parks& Recreation Department (979)764-3414 pnprinQfie|d©oatx.Wov College Station. Heart of the Research Valley. Proposed Parle Lavi,d DeoltcatLow R.o&tiwg sheet Date Cowtacted: ( (-2 �'�'Q `' Talzew B : ) Cowtacted b� : Propert Navas: O(�7 evt- Fie 7.)/4C 'e p J Fi Property owwer: -. DeveLoper's Name: 5-4 k Pliowe #: DeveLopvvtevk Services Cowtact: s. copo of this form. to Pam: 2. Dedicati.ow clieclzUst created: -f2 3. Map received from developer: f ( - 2 7—o'' 4. Placed ow Pares Board ageo,da: s. ewda f axed to DeveLo er: 100-'1` `� � p 6. Board passed ow to Devetopwtewt servI.ces: Pam Springfield-Fwd: Re: Dolly Olden Plat Application Page 1 ', From: Ric Ploeger To: d .net Mark McAuliffe Date: 11/29/2005 9:28:10 AM Subject: Fwd: Re: Dolly Olden Plat Application We wilplace it on the agenda. Eric Ploeger City of College Station P.O. Box 9960 College Station, TX 77842 (979) 764-3415 Phone (979) 764-3773 Fax rp|oeQor@oatx.gov >» Mark McAuliffe 11/2S/O58:OOAyW >>> Mr. YWayo, Please send a copy of the plat to Ric Ploeger. Thank you. Ric, Please que it up for consideration. Thank you. Mark E. McAuliffe Land Agent The City of College Station, Texas P.O. Box 9960 College Station, Texas 77842 979/764-3510 (Telephone) 979/229-3405 (Cellular) 979/776-8871 (Home) 979/764-6377 (Fax) rnmoau\iffea,catx.gov(E-K8oU) CC: Joey Dunn; Pam Springfield