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HomeMy WebLinkAboutCollege Station Orientation Handbook; booklet (1985) CITY OF COLLEGE STATION kr ORIENTATION HANDBOOK 1 1 1 1 V i -- FOR MEMBERS OF THE CITY COUNCIL, BOARDS, COMMISSIONS Cf AND COMMITTEES April, 1985 1B I! CITY OF COLLEGE STATION tiro 1 ORIENTATION HANDBOOK 1 1 1 1 FOR MEMBERS OF THE CITY COUNCIL, BOARDS, COMMISSIONS AND COMMITTEES 1 1 1 1 April, 1985 1 1 1 ORIENTATION HANDBOOK FOR MEMBERS OF THE COLLEGE STATION CITY COUNCIL, BOARDS, COMMISSIONS AND COMMITTEES TABLE OF CONTENTS I. INTRODUCTION II. APPOINTMENTS; HOW MEMBERS OF CITY BOARDS, COMMISSIONS, AND COMMITTEES ARE APPOINTED III. TAKING THE OATH OF OFFICE IV. TYPES OF BOARDS AND COMMISSIONS A. BOARDS AND COMMISSIONS NOT GOVERNED BY " STATE LAW B. BOARDS AND COMMISSIONS GOVERNED BY STATE LAW R V. SUMMARY OF THE INDIVIDUAL BOARDS, COMMISSIONS, AND COMMITTEES A. NOT GOVERNED BY STATE LAW B. GOVERNED BY STATE LAW VI. PROCEDURES FOR CONDUCTING A MEETING VII. WORKING WITH CITY STAFF VIII. PRESS RELATIONS XIV. AN OVERVIEW OF BOARDS AND COMMISSIONS MEMBERS' LEGAL LIABILITY X. THE TEXAS OPEN MEETINGS LAW'S REQUIREMENTS FOR BOARDS AND COMMISSIONS XI. APPENDIX A. MEETING PLANNING GUIDE B. CHAIRMAN'S EVALUATION E -1- c r , . Introduction: As Texas becomes increasingly urban, its government calls for increasingly complex solutions. The public meet- ing of policy and advisory bodies has felt this gradual change. The public wants to know what, why, where, and how much. Citizens who serve on Texas boards, commissions, and councils often do so with no pay and with little expected reward. The sense of civic duty still prevails in Texas. This orientation handbook is an attempt to help these civic spirited citizens. Not all answers to every possible situation will be found in this handbook. This is not its intention. Instead, the reader will find a thorough intro- duction to topics, processes, and approaches which directly affect council, board, and commission members. This hand- book has been written and compiled especially and particu- larly for members of the council, boards, and commissions in the City of College Station, Texas. However, by examining this handbook, board, commission, and councilmembers of other cities will find a good introduction to topics, pro- cesses, and approaches, which may easily be related to dif- ferent cities and could give some insight into different ways to operate. In using this manual, you may want to read a descrip- tion of the board or commission you serve on. While that is an expedient approach, we also suggest that you pay atten- tion to the other, more generalized topics. For example, ' the provisions of the Texas Open Meetings Law apply to every council, board or commission member in Texas and should be consulted to assure you are aware of your role in its execu- tion. Not all things in the manual will apply similarly to members of the city council, boards, and commissions. For example, in cases of personal legal liability, members of the city council, various boards and their officers may be more susceptible to its application. This manual cannot answer all questions for all situa- tions. Whereas this manual was originally intended to be written only for the members of boards, commissions and com- mittees, members of the City Council may especially find that many of their questions remain unanswered. Indeed, reading of this manual may prompt new questions. These questions can prove to be an advantageous focus for discus- sion of particular topics related to your city. Excellent additional information may be obtained from the references cited in this handbook. Also, consider asking your city's staff for direction as not only a way to find an answer, but 11 also to build a mutual understanding and confidence in each other's ability and knowledge. 11 -2- 1 I: I: r o RECEIVING AN APPOINTMENT 1. Appointment of members to boards, commissions and com- r mittees: There are various factors which should be kr considered when appointing members to committees, and city councils approach the matter in different ways. a. Democracy and Representativeness. Some cities E. allow each city councilman to appoint an equal number of members to each committee board or commission. This is said to produce the same balance on each committee as is on the council. Since the council is supposedly representative of interests in the city, then all committees should be. In addition, interest groups in the community should be consulted and their recom- mendations considered. b. Executive Authority. In some cities, it is the legal right (power) or the privilege of the mayor to make appointments with the approval of the City Council. This enhances executive of- II fice and authority of the office of mayor. c. Legal Considerations. State law dictates mem- bership in the case of some committees. This I is covered in other sections and should be checked first. d. City Staff. Since the city staff will to have work with these organizations, some input as to II membership should be allowed. e. Expertise and Knowledge of the Subject Matter should also be considered. In building code I committees (electrical, plumbing, etc.) this is especially a factor. However, a balance should also be considered. The profession should not II be totally allowed to regulate itself. All real estate people on P & Z is not a proper balance of citizen interests and need of the industry. II 2. Appointments in College Station are made by the City Council to all boards, committees and commissions: Citizens who are interested in being appointed can fill 1 out an application form and return it to the City Secre- tary's office at city hall. Most regular appointments are made in April of each year following the city coun- cil elections. ' 3. Attendance at Meetings requirements: Many cities are passing ordinances making attendance at a set number of meetings mandatory. A common example is - -a member must II not be absent for more than three meetings or 25 %, which ever is greater during a single appointment year except for medical reasons or when excused by the committee or II -3- II rr. by the council. Legal factors may govern removal so this requirement may not be applied to all committees, boards or commissions. Consult your City Attorney be- fore taking this dismissal action. TARING THE OATH OF OFFICE 1r The Texas Constitution requires that all public offi- cials take an oath of office. The basic question is what is a public official? Article XVI, Section 1 states, "The Sec - retary of State and all other appointed officers, before entering upon the duties of their office shall take the fol- lowing Oath or Affirmation." I , do sol- emnly swear (or affirm) that I will faithfully execute the ., duties of the office of of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and this State; and I furthermore solemnly swear (or af- tor firm), that I have not directly nor indirectly paid, of- fered, or promised to pay, contributed, nor promised to con- tribute any money or valuable thing, or promised any public office or employment, as a reward to secure my appointment or the confirmation thereof. So help me God." Since the Constitution does not tell us who a public of- ficial is, the safe position is to assume that all board and commission members are public officials and give all an oath of office. This is epecially true of any body that makes decisions that affect people, especially quasi - judicial bodies such as the Zoning Board of Adjustment and the Plan- ning and Zoning Commission. The premise is based in the Com- mon Law theory that public officials make decisions that have the force of law, and therefore, must officially be installed in office by taking an oath. [: There is limited case and statutory law existing on this matter. A 1945 Attorney General's opinion (No. 0 -6829) states that School Boards of Equalization must be given an oath of office. State law allows the chairman of several Boards (Zoning Adjustment and Housing Authority) to adminis- `""' ter an oath to and compile witnesses to attend. One can as- sume that members of such boards would also have to be given an oath of office as they are administering oaths to oth- ers. In addition, giving an oath to members of such boards or commissions might serve to impress upon them the importance h. of their actions. It may also serve as a nice way of making them feel that their service is appreciated. t: 1 -4- 1 TYPES OF BOARDS AND COMMISSIONS rw Boards, commissions, and committees can be divided into two types. 1) those boards and commissions governed by iks• state law, and 2) those not governed by state law and being left up to the discretion of the city council. For each board and commission the following information is provided: (1) The Creating Authority for the board, commission, or committee. This may be state law, city ordi- nance, or resolution, or a combination of those. (2) Membership and Method of Appointment (3) Eligibility (4) Term of Office (5) Meetings (6) Duties and Responsibilities Copies of the ordinances and state laws creating the various boards and commissions are compiled in supplementary pages to this handbook which are available upon request. BOARDS AND COMMISSIONS NOT GOVERNED BY STATE LAW Advisory committees are committees of citizens appointed ' by the mayor and approved by the City Council. Their pur- pose is to give advice to the City Council on areas of com- munity interest. These committees are not governed by spe- ll cific state law but are created by the City Council. Some are created by council ordinance and may be created for a certain time period or may be created for an unspecified du- ration. Advisory committees cannot pass ordinances; instead their purpose is to study the concerns at hand and to make recommendations. These bodies are usually given the title of Committee instead of Board, because "Board" usually implies that the body has some ability to enforce its decisions or that its decisions are final or supported by law. The term "board" may mean that the body has quasi - judicial status. If such boards have enforcement or quasi - judicial functions the term "board" is appropriate. If, on the other hand, such bodies are simply advisory and make recommendations for changes in policy to the city council, the term "Advisory Committee" is more appropriate. Elected officials find they have many uses for advisory committees in addition to the general usage of expanding citizen participation in government and gaining information on important issues prior to passing ordinances. Some of these uses are: - -to acquire expertise. - -to deal with issues too new to use standard avenues of participation. 11 -5- 1: !: - -to bring together viewpoints which might not otherwise be heard and to gain input from a cross - section of the community. - -to involve qualified persons in the government who do not desire to compete for public office. - -to resolve conflicts between groups of citizens. Advisory committees can be especially useful when they serve as (1) a source of ideas, and (2) as a messenger to "get out the word ": (1) Advisory committee as a source of ideas - -The best possible function for an advisory committee is to serve as a creative source of ideas in the policy making process. The committee can collect and evaluate information on how well the government is responding to the needs of the community. This kind of approach often leads to new ideas, as the !: group that began to evaluate services may develop into an innovative unit that will suggest new alternatives to the governing body. I! (2) Advisory committees get the word out - -Even in com- munities with responsive and responsible news me- dia, information about important proposed policy changes may not get to effected persons for some time. Representative advisory committees can pro- vide a feedback link to the governing board mem- bers, as well as a way of taking information to the citizens. The press may help with this pro- cess since the advisory committee itself is usual- ly newsworthy. I! (The preceding material was taken from: Elected Officials Handbook, Susan Clark, International City !: Management Association, Washington, D.C., 1983.) STAFFING THE COMMITTEE 1: "Usually a city or county staff member is assigned to work with an advisory committee on a temporary or part -time basis. Also City Councilmembers are usually assigned to serve as a council liaison with advisory committees. Isola- tion can be a key problem in the use of advisory committees; if you let them drift on their own with no regular staffing link you may only compound problems. It is crucial that the lines of communication are kept open between the advisory committee and the elected officials." -6- E 11� to ADVISORY COMMITTEES IN COLLEGE STATION err (1) Ambulance Advisory Committee (2) Cemetery Committee ,,, (3) Community Appearance Committee (4) Community Center Advisory Committee (5) Electrical Examining Board (6) Parks and Recreation Board (7) Safety Committee (8) Teen Center Board r ADVISORY COMMITTEES AND BOARDS NOT GOVERNED BY STATE LAW 1. AMBULANCE ADVISORY COMMITTEE A. CREATING AUTHORITY B. MEMBERSHIP AND METHOD OF APPOINTMENT The Ambu- 11 lance Advisory Committee shall consist of two (2) citizens and a council liaison to serve on the com- mittee. The Council shall also appoint a represen- tative from the Brazos County Medical Society, Humana Hospital, and St. Joseph's Hospital. The committee also consists of the city manager or his representative, the fire chief, and EMS director. I C. ELIGIBILITY ( SEE ABOVE) D. TERM OF OFFICE No set terms of office. E. MEETINGS Said committee shall meet at least two (2) times per year. F. DUTIES AND RESPONSIBILITIES It shall be the duty of such committee to submit to the Council, from time to time, its recommendations as to new specifi- cations for emergency ambulances and its recommenda- tions according to the City Code of Ordinances. 1 2. CEMETERY COMMITTEE A. CREATING AUTHORITY B. MEMBERSHIP AND METHOD OF APPOINTMENT The Cemetery Committee shall be composed of six (6) members. Members shall be appointed by the Mayor and con- firmed by the City Council. C. ELIGIBILITY Members shall be citizens and quali- fied voters. D. TERM OF OFFICE Members of the Cemetery Committee shall serve for a period of two (2) years. E. MEETINGS On call by chairman. F. DUTIES AND RESPONSIBILITIES To advise the City Council regarding policies relating to the city owned and operated cemetery. I/ -7- II k rirr sr 3. COMMUNITY APPEARANCE COMMITTEE rr A. CREATING AUTHORITY City Council Minutes, April 27, 1970. II B. MEMBERSHIP AND METHOD OF APPOINTMENT Members of the Community Appearance Committee shall be ap- pointed by the Mayor and confirmed by the City Coun- cil. The Community Appearance Committee shall be II composed of eleven (11) members. C. ELIGIBILITY Members shall be citizens and quali- fied voters. I D. TERM OF OFFICE Members shall serve for a period of two (2) years. E. MEETINGS On call by chairman. II F. DUTIES AND RESPONSIBILITIES To advise the City Council and promote community appearance. Specific programs and policies recommended by this Committee and approved by the City Council include a revision II of the sign ordinance, street tree plan for the city, a booklet of the care and planting of trees in College Station, an awards program for businesses II and apartment projects that have contributed to city beautification and the adoption of a city logo. 1/ 4. COMMUNITY CENTER ADVISORY COMMITTEE A. CREATING AUTHORITY B. MEMBERSHIP AND METHOD OF APPOINTMENT The Commu- nity Center Advisory Committee shall be composed of II five (5) members and two (2) alternates. Said mem- bers shall be appointed by the Mayor and confirmed by the City Council. II C. ELIGIBILITY Members shall be citizens and quali- fied voters. D. TERM OF OFFICE The members of the Community Cen- ter Advisory Committee shall serve for a period of two (2) years. E. MEETINGS Said committee shall meet every 1st Wednesday of the month at 7:00 p.m. II F. DUTIES AND RESPONSIBILITIES To promote guidance to the City Council on the operation, use, and pro- motion of the City Community Center. II 5. ELECTRICAL EXAMINING BOARD A. CREATING AUTHORITY City Ordinance No. 629. B. MEMBERSHIP AND METHOD OF APPOINTMENT The elec- trical board shall consist of five (5) members. The five (5) members shall be appointed by the City Council. One (1) shall be a representative of the City, selected from among the city employees of the Building g De ar p tment. The other four (4) shall not be full time employees of the city, and one (1) II shall be licensed as a master electrician by the city. -8- '1 rrr rs C. ELIGIBILITY See above. D. TERM OF OFFICE The members of the board shall serve at the pleasure of the City Council except any board member shall be replaced any time if he fails to meet the criteria for appointment or if his at- tendance at called meetings falls below seventy per - cent (70 %) for any twelve (12) month period or if he fails to attend three (3) consecutive meetings. E. MEETINGS Said board shall meet when needed. F. DUTIES AND RESPONSIBILITIES The board shall re- view applicants for license, determine if their ex- it perience is such that they are qualified to take the examination, grade said examinations, and deter- mine by majority vote of the board that a license it shall or shall not be issued. Said board shall de- termine, by majority vote of the board, when li- censes shall be revoked for cause. If said board revokes a license for cause, the individual whose license is revoked shall cease all electrical work within the city unless or until said action of the board is altered by action of the City Council or a to court of law. The Board may conduct said exams each month if necessary. Before taking the exam each person must be approved by the Board as having the necessary training and experience to pass the exam. Four years experience are normally required before a person can take the exam. A $50.00 license fee is required as well as an annual renewal fee of $25.00. Failure to practice as an electrician for a period of two consecutive years after the date of licensing or renewal makes the person ineligible for license renewal. 6. PARKS AND RECREATION BOARD A. CREATING AUTHORITY City Ordinance No. 1137. B. MEMBERSHIP AND METHOD OF APPOINTMENT The Parks and Recreation Board shall be composed of seven (7) members as appointed by the City Council. The Coun- cil shall appoint one (1) member of the board to serve as chairperson and one (1) member to serve as vice - chairperson on an annual basis. One (1) member of the City Council shall be appointed to serve on the board as a nonvoting representative. C. ELIGIBILITY Members shall be citizens and quali- fied voters. D. TERM OF OFFICE The terms of office for the Parks and Recreation Board shall commence on May 1st and shall be for two (2) years. The members of the board shall be appointed by the City Council on a staggered basis with three (3) terms expiring on 11 uneven numbered years and four (4) terms expiring on -9- I/ 1 even numbered years. A member appointed to fill a vacancy on said board shall serve the remainder of the term of his predecessor. E. MEETINGS The board shall provide for regular meetings at 7 :00 p.m. on the 2nd Tuesday of each month, and special meetings as necessary. Said Board is authorized to establish its own rules, reg- ulations, and bylaws subject to ratification by the City Council. F. DUTIES AND RESPONSIBILITIES The duties of said board shall be to advise and recommend to the City Council on all matters concerning the establishment, maintenance, and operation of all parks within the city and the establishment and operation of recre- ation programs conducted by the City of College Station for its inhabitants. The board shall also carry out all other duties and responsibilities as may be assigned by the City Council. 7. SAFETY COMMITTEE A. CREATING AUTHORITY City Council Minutes, April 27, 1970. B. MEMBERSHIP AND METHOD OF APPOINTMENT The Safety I/ Committee shall be composed of eight (8) members who shall be appointed by the Mayor and confirmed by the City Council. C. ELIGIBILITY Members shall be citizens and quali- fied voters. D. TERM OF OFFICE Members of the Safety Committee shall serve for a period of two (2) years. E. MEETINGS On call by chairman. F. DUTIES AND RESPONSIBILITIES To make recommenda- tions to the City Council concerning safety on the highways, and at intersections in the city, and in all matters of public safety. 8. TEEN CENTER ADVISORY BOARD A. CREATING AUTHORITY B. MEMBERSHIP AND METHOD OF APPOINTMENT The Teen Center Advisory Board shall be composed of twelve (12) regular members and four (4) alternates. There shall be two (2) members each from grades 6,7,8,9, and 10 and there shall be one (1) member each from grades 11 and 12. Members shall be appointed by the Mayor and confirmed by the City Council. C. ELIGIBILITY Members of the Teen Center Advisory Board shall be students in good standing in the College Station Independent School District, and shall have made application with recommendations for membership. -10- 1 1 1 I/ D. TERMS OF OFFICE Members of the Teen Center Advisory Board shall serve for a period of (1) year. E. MEETINGS On call by chairman. F. DUTIES AND RESPONSIBILITIES Said Board shall suggest to the City Council on matters of concern to the Teen Center, such as the furnishing of equip- ! ment, fund - raising, and the establishment of rules and regulations pertaining to the Center. 11 BOARDS AND COMMISSIONS GOVERNED BY STATE LAW Several boards and commissions are governed by State Law. Cities must therefore form these committees in accor- dance with such statutes. These have been separated from those boards and commissions not governed by state law. 1 In most cases these boards and commissions are "quasi - judicial" as discussed later. These actions must follow some prescribed procedure and are sometimes subject to re- view by courts. Members of such committees should be given the oath of office. The following boards are those governed by state law: 1/ (1) Joint Zoning Airport Commission (2) Planning and Zoning Commission (3) Plumbing Appeals and Advisory Board (4) Structural Standards Board (5) Zoning Board of Adjustments BOARDS AND COMMISSIONS GOVERNED BY STATE LAW IN COLLEGE STATION 1. JOINT EASTERWOOD AIRPORT ZONING BOARD A. CREATING AUTHORITY Articles 46e -1 to 46e -15 (V.A.C.S.) and City Ordinance No. 1280. B. MEMBERSHIP AND METHOD OF APPOINTMENT The Easterwood Field Joint Airport Zoning Board shall be composed of nine (9) members, two to be appointed by the City Council of the City of College Station, Texas, and two to be appointed by the City Council of Bryan, Texas, two members to be appointed by the Commissioners' Court of Brazos County, Texas, and two members to be appointed by the Commissioners' Court of Burleson County, Texas. The ninth member shall be elected by a majority of the members so appointed and said ninth member shall serve as Chairman of the said Easterwood Airport Zoning Board. -11- 1 ty r ip C. ELIGIBILITY Members shall be citizens and quali- fied voters. Also, see above. D. TERM OF OFFICE The City Council of the City of College Station may appoint a representative on said board for a term of which is their pleasure. E. MEETINGS On call by chairman. F. DUTIES AND RESPONSIBILITIES Duties of said board I shall be to recommend to the City Councils the boundaries of the various zones to be established and the regulations to be adopted therefore in order 11 to protect the flight zones designated for Easter - wood Airport. 2. PLANNING AND ZONING COMMISSION A. CREATING AUTHORITY Article 1011f, V.A.C.S. B. MEMBERSHIP AND METHOD OF APPOINTMENT The Planning and Zoning Commission shall consist of seven (7) members. The members shall be removable for cause by the City Council upon written charges and after a public hearing. Appointment of members shall be made by the City Council, at their first meeting after the city election. The members of the Planning and Zoning Commission shall organize and select a vice - chairman and secretary. Chairman is I/ elected by the City Council at the first regular meeting following the city election. C. ELIGIBILITY The Planning and Zoning Commission members shall be residents of the city and qualified voters. D. TERM OF OFFICE Three (3) members of the Planning and Zoning Commission shall be appointed in odd num- "' years and three members and the chairman shall be appointed in even numbered years. Terms of of- fice shall be limited to two (2) consecutive terms or five (5) consecutive years. E. MEETINGS The Planning and Zoning Commission shall meet regularly every 1st and 3rd Thursday at 11 7:00 p.m. Four members shall constitute a quorum for transaction of business and no recommendation shall be advanced to the City Council without a concurring vote of four (4) members. F. DUTIES AND RESPONSIBILITIES The following represents a partial list of areas of responsibili- ties of the Planning and Zoning Commission: (1) Zoning commissions serve as review bodies to recommend changes in the zoning ordinance to the legislative board, which is the City Coun- cil. Most cities combine zoning with planning 11 in one commission. Since state law Art. 1011c requires zoning to be made in accordance with a 1 -12- I/ 1 II I "comprehensive plan, it seems reasonable that both planning and zoning should be done by the same body." The commission will then work on II preparation, adoption, and modification of the comprehensive plan of development of the city, for approval and adoption by resolution by the City Council. While the meaning of the term I/ "comprehensive plan" is subject to some dis- agreement even among planners, it is obvious from a reading of Article 1011c that it means II more than a zoning map. A comprehensive plan should consider social, health, economic general welfare, safety, and service delivery factors. Before zoning or rezoning changes can occur the zoning commission must hold a public hearing and all owners of property within 200 feet of the area of the proposed change must be given writ - 1 ten notice 10 days prior to the date set for the public hearing. Most cities use registered or certified mail with cost of this being passed on II to the person requesting the zoning change. No- tification of changes must also be placed in a newspaper of "general publication." ALL recom- mendations of the Zoning Commission, both posi- I/ tive- -that is, for a change, and negative- - against the change, MUST BE FORWARDED TO THE CITY COUNCIL FOR FINAL ACTION. The City Council 11 will also hold public hearings and make the fi- nal decision. The decision is by majority vote except in such cases where a "written protest I against such change, signed by owners of 20 percent or more either of the area of the lots or land included in such proposed change or of the lots or land immediately adjoining the same II and extending 200 feet there from," is received before the meeting. In such cases, a 3/4 vote of the City Council is needed for approval. 11 (2) The Planning and Zoning Commission also has the following responsibilities: (a) Preparation of subdivision regulations or II modifications thereof, to be recommended to the City Council. (b) Approval or disapproval of subdivision plats within the city limits and within the ex- " traterritorial jurisdiction of the city to be recommended to the City Council. (c) Preparation of the zoning ordinance and I/ amendments thereto, to be recommended to the City Council. 11 -13- I/ I/ 1 I/ (d) Make recommendations for the effective co- ordination of the various departments, commit- tees, and boards, implementing the comprehensive plan. (e) The Planning and Zoning Commission shall keep the City Council informed of its progress 11 on their plans and make periodic status develop- ment reports to the City Council, and said re- ports shall be made within six (6) months after their appointment, and every six (6) months thereafter. (f) The Planning and Zoning Commission shall make studies and recommendations with regard to 11 proposed annexations. The Planning and Zoning Commission also has a subcommittee called the Plan Review Committee (PRC). The PRC is ap- pointed to review all commercial, residential, and institutional projects requiring a condi- tional use permit. This subcommittee will re- view such projects and make a recommendation for I/ approval to the full Commission. 3. PLUMBING APPEALS AND ADVISORY BOARD A. CREATING AUTHORITY Article 6243 -101, V.A.T.S. and City Ordinance No. 1108. B. MEMBERSHIP AND METHOD OF APPOINTMENT The Plumb- ing Appeals and Advisory Board shall be composed of seven (7) members who shall be appointed by the Mayor and confirmed by the City Council. The board shall consist of the following: (1) A licensed Master Plumber (2) A licensed Journeyman Plumber (3) A building contractor (4) The City Engineer (5) The City Health Officer (6) A licensed architect or alternate selection (7) Senior Plumbing Inspector 11 The Board shall formally elect a chairman, a vice - chairman, and a secretary from its members and may adopt such rules as it deems necessary for the or- derly conduct of its affairs. C. ELIGIBILITY See above. D. TERM OF OFFICE Members of the Plumbing Appeals and Advisory Board shall hold office for terms of 4 years, or until their successors are appointed and have qualified; except, the members of the Board first appointed shall hold office, two for two years and two for four years as determined by the Mayor and City Council in making said appointments. -14- 1 ■It r E. MEETINGS On call by chairman when needed. F. DUTIES AND RESPONSIBILITIES The following repre- sents a partial list of areas of responsibilities of L the Plumbing Appeals and Advisory Board. A complete list can be found in Section 8.3 of the Plumbing Code. (1) Any person, firm or corporation aggrieved by an interpretation of the Plumbing Code or by any deci- sion or ruling by the Plumbing Inspector under this code shall have the right to make an appeal to the Plumbing Appeals and Advisory Board. (2) The Board shall submit to the City Council such recommendations for the improvement and revision of the City Plumbing Code as it may from time to time deem necessary and proper in light of the develop- ment of new materials, methods or techniques which would result in a better and more economical instal - l/ lation. All requests for use of materials or meth- ods not covered in the Plumbing Code shall be fully supported by factual evidence, or prior approval I/ from a recognized testing agency or such impartial qualified authority acceptable to the Board. I/ 4. STRUCTURAL STANDARDS BOARD /BUILDING CODE BOARD OF ADJUSTMENTS A. CREATING AUTHORITY City Ordinances No. 1128, and No. 528, Sec.111. I B. MEMBERSHIP AND METHOD OF APPOINTMENT The Structural Standards Board /Building Code Board of Adjustments shall be composed of five (5) members. Said members shall be appointed by the Mayor and confirmed by the City Council. C. ELIGIBILITY Said board shall consist of five (5) members and shall be composed of one Architect, one General Contractor, one Engineer, and 2 members at large from the building industry. D. TERM OF OFFICE Said Board members shall serve for three (3) year overlapping terms. E. MEETINGS Said board meets each month at the call of the chairman and may meet on call at anytime. 11 F. DUTIES AND RESPONSIBILITIES The Duties of the Structural Standards Board /Building Code Board of Adjustments include the following: (1) To consider and determine whether or not a par - 11 ticular building, dwelling or structure is an unsafe building within the meaning of the City Ordinance and a public nuisance. 11 -15- 1 1 II II (2) To determine the means by which any unsafe building public nuisance shall be abated, whether by vacating, repair or demolition and to determine the II time by which such actions shall be accomplished. (3) To hear and consider appeals for modification or reversal of orders, notices and actions of the Building Official in execution of his duties pursu- II ant to this ordinance and directives of the Board, and to this end the Board shall have the powers of the Building Official. II (Note: The above board is called the Structural Standards Board in College Station. The name Structural Standards Board is used rather than Housing Code Board because the City of College Station has a Structural Standards Code II rather than a Housing Code. The difference is that a housing code usually applies only to residences whereas a structural standards code applies to all structures: resi- I/ dential, commercial and industrial.) 5. ZONING BOARD OF ADJUSTMENTS II A. CREATING AUTHORITY Article 1011g (V.A.C.S.) and City Ordinance No. 850, Section 11. B. MEMBERSHIP AND METHOD OF APPOINTMENT The Zoning Board of Adjustment shall consist of five (5) mem- II hers who are residents of the City and qualified voters. Members shall be appointed by the Mayor and confirmed by the City Council. The Council may I/ appoint two (2) additional members to serve as al- ternates. C. ELIGIBILITY Members shall be citizens and quali- II fied voters. D. TERM OF OFFICE Each member shall be appointed for a term of two (2) years, except that two (2) members appointed initially shall have terms of only one (1) II year. After the initial appointments, two (2) shall be appointed in odd numbered years to maintain a membership of five (5). II E. MEETINGS Every third Tuesday of the month, 7:00 p.m. in the Council Chambers. F. DUTIES AND RESPONSIBILITIES The following is only II a partial list of the responsibilities of the Zoning Board of Adjustment. (1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, 11 interpretation, or determination made by the Zoning Official in the enforcement of the Zoning Ordinance. (2) To interpret the intent of the Zoning District II Map where uncertainty exists because the physical features on the ground vary from those on the Zoning II -16- II 1 1 I , District Map and none of the rules set forth in Sec- tion 2 of the Zoning Ordinance apply. (3) To decide upon various requests for Use Permits. (4) To initiate on its motion, or cause to be pre- sented by interested property owners, action to bring about the discontinuance of a nonconforming ' structure under any plan whereby full value of the structure can be amortized within a definite period of time, taking into consideration the general char- " acter of the neighborhood and the necessity for all property to conform to the regulation of the Zoning Ordinance. (5) To hear and decide exceptions to the terms of the Zoning Ordinance. (6) To authorize upon appeals variances from the terms of the ordinance which are not contrary to the public interest, where owing to unique and special conditions of the land not normally found in like districts, a strict enforcement of the Zoning Ordi- nance would result in unnecessary hardship and where the spirit of the ordinance shall be observed and substantive justice done. A vote of at least 4 mem- bers of the board is required to make a change. 11 (7) Ordinance No. 1301, the Flood Plain Ordinance, establishes the ZBA as the body to hear variance re- quests. (Sec. D, Ord. 1301). (8) The ZBA is the body which is designated to hear variance requests to the Airport Zoning Ordinance. (46e -10 Texas Revised Civil Statutes.) Appeals of the decisions of the Board may be made to any court of record. (Note: only the cities of Houston, Mid- land, Sweetwater, and Wichita Falls have municipal courts that are courts of record. Therefore, appeals would have to be made to either the county or district courts in most cities.) Appeals must be made within 10 days of the 1 filing of the Board's decision. The Board's decision be- comes final at noon on the Thursday following the meeting. Costs shall not be allowed against the Board unless it acts with gross negligence or bad faith or malice in making a decision. (NOTE: In small cities where there are few re- quests for hearings before this Board, the City Council can, by state law, sit as a Board of Adjustments.) 11 1 1 -17- i I/ II I/ PROCEDURES FOR CONDUCTING A MEETING In order for a city's meeting of boards, commissions and committees to function properly and in a fair and orderly II manner certain rules and procedures should be utilized. The following is an explanation and demonstration of a few sim- ple rules and procedures that provide a cordial but orderly II and somewhat formal atmosphere for conducting meetings. I/ ROLE OF THE CHAIRMAN AND THE AGENDA The function of the chairman is to provide leadership to the group. He has certain duties and responsibilities which II he must perform. (1) One is to see that everyone acts in accordance with established rules. ' I: (2) He also has the responsibility to see that the meet- ing moves along and stays on track. If the group is indecisive, he should exercise leader- ship and make suggestions. When debate is concluded he L should summarize the major points made. In general, the chairman should maintain order and try to bring the group to a conclusion on matters before it. II The job of the chairman is made easier by always having a written agenda. The agenda should be prepared ahead of time and copies given to all those present and to the com- ' mittee ahead of time if possible. The agenda should be pre- pared by the secretary, who is usually the department head or staff person to the board or commission. Usually, the first order of business on the agenda is 11 the reading, correcting and passing of the last meetings' minutes taken by the secretary. This is usually followed by reports from committees. Unfinished business is next, fol- II lowed by new business. PROCEDURAL RULES OF ORDER 11 Here are a few obvious points that should be followed; but, are often forgotten: 1. Discuss only one topic at a time. II 2. The chairman should recognize the person or persons who wish to speak and only they should be allowed to speak. Others should hold their comments until they I have the floor. 3. If the meeting is a public hearing, the board or commission should hear the public and keep quiet un- til questions are allowed by the chairman. I 4. If a lot of people want to speak on a topic, some time limit should be set on how long each can speak. II -18- II 1 1 1/ PROCEDURAL RULES 1. Begin the discussion by having a member make a motion. Motion should be made and seconded. After this, debate can be conducted. Proper form, "(Mr. Chairman, I move the following....)" 2. Amending a motion. Any motion may be amended as follows. "Mr. Chairman, I move that we amend the motion by (adding, striking out, etc. the words....)" The amendment must be seconded and then it can be discussed. When discussion ends the amendment is voted on first. If the amendment passes, the original motion is then put to a vote as amended. If the amendment fails, the original motion is put to a vote. 3. Change by a Substitute Motion. Another way to change an original motion is by use of the Substitute Motion. A substitute motion is just an amendment that changes an entire sentence or paragraph. It must be seconded and then can be discussed. It may be amended and differs only from an amendment in that if the substitute motion passes it does away entirely with the original motion. 4. Lay a Motion on the table. Sometimes a board or commission may wish to defer action on a motion. One way to accomplish this is to lay a motion on the table. It is in order to move that a main motion be laid on the table when discussion on the main motion has or is about to end. To lay something on the table it must be moved and seconded. A vote is immediately taken without discussion. Once it has been decided to lay a motion on the table, it cannot be brought up again until the board or commission votes to do so. A tabled motion is not debatable and must be voted on immediately. If it is decided to bring a motion from the table, then this main 1 motion can then be discussed and a vote taken. A tabled motion can be brought from the table during the same meeting but is usually done so at a later meeting when unfinished business is being considered. 5. Postpone a Motion. Another method of delaying a decision on a matter is to Postpone to a Certain Day 11 the consideration of a main motion. This is done by simply making a motion to postpone consideration of the motion until a definite future date and having it seconded. The motion to postpone is then open for discussion. Following discussion a vote is taken. A tabled motion can be brought from the ta- ble during the same meeting but is usually done so -19- 1 at a later meeting when unfinished business is being considered. 6. Motion to Refer. A main motion may also be delayed by a Motion to Refer the main motion to a committee or person for further study. After the motion to refer is moved and seconded, it is open to discus- sion and motions to amend can be made on to whom the 11 main motion should be referred. The motion to refer as amended is then voted on. If it passes, the main motion is referred; but if it fails, then discussion I/ on the main motion begins. 7. Point of Order. While this review of parliamentary procedures has been designed to cover the most com- mon problems a board or commission member will face, they may not always be applicable depending upon any bylaws adopted by the board or commission or be- cause of illegal constraints in a hearing type situ- ation but these basic procedures usually are accept- able under most meeting situations. Complicated procedural questions should be researched from ROBERTS RULES OF ORDER, REVISED. Any time a member feels an incorrect procedure is being used he can interrupt with a point of order request which re- quires the chairman to decide what is the correct 11 procedure. 8. Suspension of the Rules. Occasionally, board or commission members may want to discuss an item of business without the constraints of any rules. Un- less the bylaws require otherwise, a two - thirds (2/3) vote of the members is needed to suspend the rules. This motion is not debatable and must be voted on upon its being seconded. WHAT IS A QUORUM? In some cases state law dictates a quorum is needed to conduct business. A quorum is the minimum number of members I needed to officially conduct business. Where no statement on quorum number exists, a committee may set any number of members present as a quorum, usually a majority, but not necessarily. SIGNING OF THE MINUTES OF THE MEETING 11 With quasi - judicial bodies (Zoning Board of Adjustments, Zoning Commission, Structural Standard Boards) where deci- sions on controversies are decided and a ruling issued, having all members of the board sign the minutes of the meeting is a good idea. It provides a record that shows what was agreed to and who voted for what. -20- 1 In conclusion, it is reasonable to assume if a meeting is held in a fair and orderly fashion all members of a board or commission must cooperate. They must be aware that cer- tain procedures must be followed and act accordingly. But the chairman has final responsibility for insuring that a meeting is properly conducted. Unless the chairman under- stands the basic parliamentary procedures discussed and is 11 willing to use them in the best interest of all concerned that board or commission will not be able to adequately car- ry out its responsibilities. The following chart was de- ll signed by Mr. Riley Fletcher of the Texas Municipal League. It outlines common motions and how they are handled. The ap- pendix has some checklists for a board or commission chair- !' man. These checklists are helpful in preparing for and con- ducting a meeting. Refer to BASIC CHART OF MOTIONS. WORKING WITH CITY STAFF A member of a city advisory board, commission or commit - 11 tee must utilize city staff expertise to adequately perform his or her job. Similarly, city staff needs the perspective and information advisory groups provide. Most of the time, this relationship is harmonious and productive. There are some things both advisory group members and city staff can do to ensure effective mutual work. Our purpose here, of course, is to learn what to avoid and discover how to prac- tice what will increase effectiveness for citizens. THE TIME TRAP Advisory group members are justifiably wary that their city jobs might take too much time. Regular advisory group meetings and the study required around these meetings con sume most of the time a member has available. Consequently, an advisory group member seldom finds opportunities to dis cuss his or her views with city staff who work from 8:00 a.m. to 5:00 p.m.-- precisely the time when advisory group members have the greatest difficulty being at City Hall. The objective then must be to increase the productive time advisory group members and city staff spend together. The following are some ways this might be accomplished. (1) The chairman of the advisory group should request that the City Manager appoint a specific person to 11 serve as staff to the advisory group. This person should then be the primary "channel" from the ad- visory group to the city staff. 1 -21- 1 1 1 z I I 1 (/). 0 11 1 1 I I I 1 x 1 1 1 1 I u? o o I I I 1 i Cr OC oc °C I oc a c I cC I to 6 cc I 1- m m r t 22 222 2 2 XM t O 0 U t > 1 () 0 its Z z <1<1 1 � I I« «1 < 1<<1 a< 1 1 . o a H . m II III Illo ono 0 poo oo 1 O to 0 I LL. 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" • C O c pt v rn C op co ovogo0 O E p C U �_ Ca �N mm O< mm mo° U p CO -13 O p � p co �iom U >�� �. v 7, t _O O y C Y.Y ° my -v ov °p�c� a��o 1 0 ��gg� �<<.�.�� �C N' � o c° 0 f �� (/) U)�•o a T 0 co o¢ 0 cc- p o ° caa w cC .6•E -EC O E c in « - - (6.. 1 9 C C O c a- �.._. p Z O � cU : : : _ : : : m rog�c 3 ` vo U OO_ °f 0socoZccCC'- o a)• -Pt ° ' w m a a» w ao N a�, cn-- w ai acv d 0_2(:)0 000 <a wu,00a 0U ii iu '1 -21B- II II (2) Each advisory group member should meet individual- ' ly with the staff person assigned the group and reach an understanding of the information the group member wants, the format and the schedule for pro- , viding the information. (3) The staff person should provide the group with an organized agenda, brief overviews of agenda items II and visual aids to increase rapid understanding of issues. (4) Some meetings should be devoted to planning and "background" presentations. This is a time for II bringing in other city staff and, possibly, other citizens. These sessions save a great deal of time in deliberative discussions and greatly increase the quality of decisions. (5) Have advisory group members make oral presentations of group work to the City Council. The process of preparing such a report greatly enhances the I group's ability to put actions into concise and un- derstandable form. II THE INSIDER TRAP Advisory groups exist to broaden the view of City Coun- II cil and staff, to serve as a window in City Hall giving a vista community -wide in scope. Advisory groups are also a way citizens may look inside City Hall. But almost from the II first meeting of an advisory group, factors are at work to restrict the view in- and -out factors which tend to make an advisory group member more of a "City Hall Insider" and less of a "private citizen." Some counter measures which might 1 I be employed to avoid this are described below. (1) Advisory groups with the help of staff, should de- termine how representative they are of community views. Where gaps exist, subcommittees should be appointed. (2) Advisory group members should insist that city staff avoid presenting proposals and information in I jargon and technical terms. Staff should avoid thinking they are obligated to "train" advisory group members to use technical and professional II jargon. (3) Advisory group members should insist staff bring them primarily policy oriented proposals and not ad- II ministrative matters for decision. (4) Advisory group members should stress plans, poli- cies, and broad structure. They should not become advocates of a department or departmental concerns. I Determining the basic design of a park, its uses, and the extent to which the park is needed are jobs 1 II -22- II the Parks and Recreation Board can aid, and propo- sitions they can advocate to the City Council. Being advocates for more recreation staff is not something they can do well. ' SUMMARY ' Basically, an advisory group member has two problems to overcome when working with city staff. First, the city staff must have their work organized to fit the time avail- able for group members. Then the advisory group must concentrate on their spe- cific role and tasks and constantly work to retain the "cit- izen viewpoint" and not the views of a "City Hall Insider." A NOTE ON PRESS RELATIONS Many city committees, boards, and commissions are not covered by the local press. However, the press pays close attention to the more important ones, especially Planning and Zoning and Parks. The chairman and members of these committees, and city staff should be ready to deal with the press. Often the reporter with the least experience in lo- cal government covers these meetings. This creates a prob- lem of accurate reporting. The chairman should not assume that the reporter knows the committee's subject matter. Committee presentations should be worded with the goal of reducing inaccurate reporting. One way to do so is to re- member the necessity to educate both the press and the pub- lic. To do otherwise is to create problems for all con- cerned. Reporters do not deliberately distort the news. Usually this distortion stems from the reporter's lack of understanding and racing to meet inflexible deadlines. Co- operating with the press and being willing to supply them with useful information will make your job much easier. AN OVERVIEW OF BOARDS AND COMMISSIONS MEMBERS' LEGAL LIABILITY THE NATURE OF CITY BOARDS AND COMMISSIONS 1 It is important to understand for the purpose of this presentation that city boards and commissions are not legis- lative bodies, which means that they cannot create new regu- lations or standards but can work within the framework that is established by the City Council or the State Legislature. Most boards and commissions are fact finding bodies which have the power to require the presentation of evidence after their jurisdictions have been evoked. They are judicial -23- 1 I type bodies they odies when the render decisions based on the factual material which has been presented to them, which decision II resolves a single case. The term used, generally, to iden- tify a board or commission with those kinds of powers is "quasi- judicial." II The importance of the distinction between legislative powers and quasi - judicial powers is that legislative powers are purely governmental powers as that term is used in legal II discussions. Quasi - judicial powers are also governmental powers but are different in that their exercise creates no individual liability on the member of the governmental body. As you will see within this discussion, there are instances II in which a member of a legislative body can run afoul of law and common decency by certain of his acts and become liable to a certain extent to answer for his conduct. II AUTHORIZED CONDUCT The boundaries of authorized conduct are drawn by common law, civil statutes and penal statutes. Acts by officials which are extra legal or, more accurately, extra jurisdic- tional which are not prescribed by statute are called ultra II vires acts. This is a Latin term which means "beyond power" and is used in modern legal terminology to define acts which are beyond the scope of the power of a corporation granted I to it by its charter but not prohibited by law. It is also applied to designate acts which are within the scope of pow- ers but which are performed irregularly and to acts of the officials of the corporation within those categories. Acts II by a board or commission member or the collective act of the board or commission which is beyond the authority of the board or commission granted by ordinance or statute would be II ultra vires acts because the city is a corporation and the same definitions apply to it. II WHAT IS A PUBLIC SERVANT? The acts proscribed by statute are both civil and penal in nature and have a broad application affecting public of- II ficials. For example, the Texas Penal Code defines public servant as "a person elected, selected, appointed, employed, or otherwise designated as one of the following..." and then I II lists several categories of public offices including "an of- ficer, employee or agent of government" and "a person who is performing a government function...." The Penal Code pro- hibits several kinds of conduct based on an intent to obtain 1 a benefit for himself or to harm another. I,t prohibits in- tentionally or knowingly doing any of the following (1) an unauthorized exercise of official power; (2) an act which 1 II 1 II -24- I II II exceeds his power; (3) refraining from performing his duty; II (4) violating a law relating to his office; and (5) taking or misapplying anything of value belonging to the governmen- tal body. Government, for the purposes of the Penal Code, means "the state, a county, municipality, or political sub- ' division of the state; or any branch or agency of the state." The public servant, as defined also commits an of- fense if he acquires or assists another in acquiring proper- , ty by the use of information to which he has access which has not been made public. NEPOTISM NEPOTISM is an example of an act by a public official which has been proscribed by civil law. Article 5996a, II V.A.C.S., says that a public official cannot cause his rela- tives to be appointed to a salaried position where the sala- ry is to be paid from public funds. This law probably has very limited application to board and commission members but II would apply more directly to the City Council. "Texas' nepotism statute, forbids the city council from hiring any person who is related to a councilmember within II the second degree by affinity or within the third degree by consanguinity. This prohibition does not apply to the pro- motion of relatives who were continuously employed by the I city for two years prior to the election of the council - member, nor to unpaid appointees." "Since 'affinity' and 'consanguinity' are the control- II ling factors in determining nepotism, both terms need to be clearly understood. Affinity is kinship by marriage, as be- tween a husband and wife, or between the husband and the blood relatives of the wife (or vice - versa). Consanguinity II is kinship by blood, as between a mother and child or sister and brother." (See charts). "These two types of kinship arise from two sets of rela- I tionships-- lineal and collateral. In lineal kinship, each generation represents one degree, so that lineal consanguin- ity exists between persons of whom one is descended in a di- rect line from the other - -as between son, father, grandfa- ther, and so on, upward in ascending line or down in a de- scending line. Thus, a father is related by consanguinity in the first degree to his parents and children, in the sec- , and degree to his grandparents and grandchildren, and in the third degree to his great - grandchildren or great- grandfa- ther. In lineal affinity, a man is related by affinity in I the first degree to his parents -in -law and children -in -law, and in the second degree to his grandparents -in -law and grandchildren -in -law." 1 II -25- 1 1 "In collateral kinship, one must first determine the common ancestors of the two persons concerned and then count down the line of descent fartherest removed from the common ancestor, with each generation representing a degree. Thus, a man is related by consanguinity in the first degree to his brothers and sisters, and in the second degree to his uncles, nephews, nieces and cousins. He is related by af- finity in the first degree to his brothers -in -law and sis- ters -in -law, and in the second degree to his uncles -in -law, aunts -in -law, nephews -in -law, nieces -in -law, and first cousins -in -law." (The preceding quoted material was taken from: Handbook for Mayors and Councilmen in Home Rule Cities, Texas Munici- pal League, Austin, Texas, 1984.) CONFLICT OF INTEREST The most difficult area to define in which problems might occur is the area of conflict of interest. The por- tions of the Penal Code discussed above are intended to pre- vent conflict of interest on the part of public officials, but the real problem occurs in trying to determine exactly 11 what constitutes conflict of interest. In a case which oc- curred in San Antonio several years ago, a county commis- sioner who voted favorably for the purchase of voting ma- ll chines was discovered to have a commission contract with the successful bidder. Although it was shown that, for some un- disclosed reason the commissioner would receive no money from the sale of the voting machines to the county, he was determined to have a conflict of interest, and the sale was voided by the court. It was remarked by that court that in this transaction it was presumed that the commissioner was not in a position to give the county his undivided loyalty when he was so vitally interested in the business of the company in other parts of the state. 11 In another San Antonio case, a contract was voided by the court because the city entered into a contract with an electrical contracting company of which one -third of the stock was owned by a member of the city's electrical board. The court found that the board member was a city official and that the contract with his company placed him in a con- flict of interest, and was, therefore, void. It is general- !' ly said that, if a city official receives any personal or pecuniary benefit from a contract, it is void; that in all official action, the law directs that the city official ' serve only one master - -the city. If it can be shown that the position of an official was such that the contract should be voided, then it would not be much more difficult to bring some action that he might have taken within those sections of the Penal Code set out 1 -26- 1 1 1 1 v� % C$ LI LL , 8 w J ..I c J ; J _ C 1II r W Y J J I V J D O C _ D C C C A 14 i A LL 1 i E C7 I w II 1 i I2 o 1 _ I v 1 v w « .� U U O 45 0 a y E i A d >. E v C c L U C) i . O I I a t a L « C v►13 1 1 I N a Y 3 ai E d Q. i I lC i c l ° y a c m 1 1 . o 7 I y O I i i 4) E Q • o l od °7 Y C 6 a _ 3 ; wZ co c °„ c ° �I ° v`O a C , 0 , Qp 3 c ' O m 7 ; 7 I O ' v o ^ D E 1 ° c Q n- m H >> N� n ^ I I I as n L .E N 0 C_ C Y Y 1 I. 1 • 1 —26A- 1 1 1 1 m m m y m c CD L m - m L y r L W m o d C C m C O - op v � n0 as n0 L L C H w C ° H D N ° C` C U C L YiE Y Yii Y Yf ^ d E I m 1 E o c N 7 O °`m (n C m m 7 I 0 CI.) L I w O •� N d ca d C C1 i c CO t C N �' c :� C t b 'i 0 0 �� — U 7 1 �_ � I ij i 0 N co N p 1 c ; _ O m m m `m o c y n 3 m y Z >. L °N a Z Z °� m o 1 c c a co CO m z A t Ch C Y N a E 1 L _ - — V I ij V ° re I 1 0 1 0 ' 1 1 1 _25B- 11 abo v e bring and brin some of that criminal liability to rest upon him. It is a far different proposition to be liable to the state than it is to be personally liable to some indi- vidual. The state can take some of your time, as well as your money. This area of the law should present your great- est concern. A recent state law has made clear the guidelines a local public official should be aware of concerning conflict of ' interest. The following are the current guidelines as set out by Article 988b (V.R.C.S.): A local public official is said to have a substantial interest in a business under the following circumstances: ' 1. The interest or ownership of ten percent (10 %) or more of the business entity or ownership, $2,500 or more of the fair market value of the business entity; or 2. Funds received by the person from the business entity exceed ten percent (10 %) of the person's gross income for the previous year. 3. A person has a substantial interest in real property if the interest is an equitable or legal ownership with a fair market value of $2,500 or more. Under the new statute a local public official commits a Class A misdemeanor if he knowingly does one of the follow- ! ing: 1. Participates in a vote or decision on a matter involving a business entity in which the local public official has a substantial interest. If it is reasonably foreseeable that an action on the matter would confer an economic benefit to the business entity involved; 2. Acts as a surety for a business entity that has a contract to do work or other business with a governmental entity; or 3. Acts as a surety on an official bond required of an officer of the governmental entity. This law also applies to the local public official where the vote involves a relative in the first or second degree of affinity or consanguinity when that relative has a substan- tial interest in a business entity that would be affected thereby. Under the above - mentioned circumstances, the local public official must file an affidavit stating the nature and extent of his interest. The affidavit must be filed with the official recordkeeper of the governmental entity. In this particular case it will be the City Secretary. Fol- lowing is a proposed form to be used under such circum- stances where such a conflict of interest may arise. CON- SULTATION WITH A PRIVATE ATTORNEY IS SUGGESTED WHERE SPECIF- IC ISSUES ARISE. -27- 1 PERSONAL LIABILITY As a general rule, quasi - judicial officers cannot be held personally liable for erroneous acts while honestly ex- ercising the judicial or quasi - judicial functions within the jurisdiction of their offices. The problem with a general rule stated as a proposition of law is that there will al- ways be exceptions to the general rule. The exceptions to the general rule will then be the concern of this portion of our discussion. If we might direct attention to the phrase about "erroneous acts while honestly exercising the judicial or quasi - judicial functions within the jurisdiction of their offices," another generalization should be pointed out. While quasi - judicial officers are protected from personal liability, as a general rule, for judicial acts in excess of their jurisdictions, if such acts were performed in good faith and under the good faith assumption that the officer had jurisdiction to act, if a court finds that the excessive acts were not in good faith or that the assumption of jurisdiction was not made in good faith, then the officer I will subject himself to civil liability. That does not mean that there will necessarily be a fine imposed because civil sanctions are imposed specifically by statute or generally by common law. As we discussed above, if the legislature proscribes a certain act or acts and says that it or they will carry certain penalties, then those penalties are the sanctions that will generally be imposed for that breach of duty. However, if a person is monetarily damaged by a prov- able amount, then the officer may also be liable in damage to the person harmed by the wrongful act. If, on the other hand, no civil penalties are imposed, the aggrieved person is left to other remedies carried over from common law and can seek to have an act enjoined or have a person compelled to perform an act. In addition, if such a person can prove harm caused by the act, then damages may also be assessed. (The following quoted excerpts are taken from: "The Handbook for Mayors and Councilmembers in Home Rule Cities," Texas Municipal League, Austin, Texas, 1984, and pertain more to members of the City Council.) PUBLIC OFFICIAL MALPRACTICE LIABILITY " Councilmembers make a variety of decisions that can ' benefit many persons and lead to irreparable harm to oth- ers. Until recently, the federal courts generally held that councilmembers were not personally liable for torts result- ing from their official actions, so long as those actions were made in good faith - -that is, without willful or mali- cious intent to do harm. (Torts are wrongful acts which re- sult in injury to persons or property. A tort can result from negligence in the proper performance of a public ser- -28- 1 11 II II vant's duty, or from intentional acts - -such as liable, false arrest or slander.) There are now indications of an emerging concept of "public official malpractice" with seri- "' implications for city officials, which is borne out by a significant increase in the number of lawsuits filed against councilmembers and other public officials." II LIABILITY UNDER STATE LAW "Generally speaking, Texas courts have held that coun- II cilmembers are not personally liable for torts resulting from 'discretionary acts' made within their authority and in 'good faith' - -that is, without intent to do harm. 'Discre- II tionary acts' are those involving personal judgment. For a councilmember, typical discretionary acts include approving amendments to the city's zoning or subdivision ordinance and I awarding bids. Each of these acts involves decisions, or choices, based on the councilmembers personal conclusions from all available facts." "Again, generally speaking, councilmembers ARE personal - II ly liable for torts resulting from their ministerial acts. "Ministerial" acts are those performed as a matter of duty and which the council has no choice except to perform. Min - II isterial acts also include those performed in obedience to state or federal laws which are so plain and explicit as to leave nothing to discretion or judgment. Examples include adoption of the city budget (an act specifically required II under Article 689a -13, et. seq., V.T.C.S.) and canvassing the results of city elections (required under Articles 7.13 and 8.29a, Texas Election Code)." II "An improper ministerial act is at the peril of the councilmember, regardless of whether it was performed in good faith, without intent to do harm. A ministerial act which is required by law, but is not performed at all, also I 11 incurs liability on the part of the councilmembers responsi- ble for its performance - -which means that a councilmember could be personally liable for paying damages to individuals I! injured because of the council's failure to properly perform a ministerial duty or negligence in not performing it at all." II ANTITRUST LIABILITY "In January, 1982, The U.S. Supreme Court opened a new 1 II horizon of potential personal liability for mayors and coun- cilmembers by ruling in Community Communications Inc. v. City of Boulder that city governments and municipal elected II officials are subject to the federal Sherman Antitrust Act. The act provides: 'Every...conspiracy in restraint of trade and commerce is declared to be illegal.' II -29- I III II II More importantly, other portions of the act provide that defendants who violate the law are liable for paying treble damages, which means that councilmembers who violate the law II could be required to pay heavy money damages out of their own pockets." "Thus, it is clear from the Boulder decision that any reasonable municipal requirement which restricts or prohib- it its free competition or allows an advantage or monopoly to one competitor, may subject both the city and its officers to liability for treble attorneys fees and court costs." 1 CITY PROTECTION OF BOARD AND COMMISSION MEMBERS II When members of city boards, commissions, and committees are acting in good faith and within the bounds allowed by the state law, city ordinances and procedures, the City Council will authorize the City to provide legal council to ' such members to as great an extent as possible. THE TEXAS OPEN MEETINGS LAW'S REQUIREMENTS II FOR BOARDS AND COMMISSIONS Article 6252 -17 of Vernon's Annotated Civil Statutes II (V.A.C.S.) is commonly referred to as the Texas Open Meet- ings Law. This article generally requires that every meet- ing of a governmental body be open to the public and enumer- ates some exceptions to the requirement. II Meeting is defined as "any deliberation between a quorum of members of a governmental body at which any public busi- ness is discussed or considered, or at which any formal ac- II tion is taken." Governmental Body is stated to mean "any board, commis- sion, department, committee, or agency within the executive or legislative department of the state, which is under the II direction of one or more elected or appointed members; and every Commissioners' Court and City Council in the State, and every deliberative body having rule- making or quasi - II judicial power and classified as a department, agency, or political subdivision of a county or city; and the board of trustees of every school district, and every county board of II school trustees and county board of education; and the gov- erning board of every special district heretofore or here- after created by law." Deliberation means a verbal exchange between governmen- II tal body members "attempting to arrive at a decision on any public business." Within the exceptions are included such activities as allowing the governmental body to exclude wit- nesses during examination of another witness; deliberation of grand juries; pertaining to acquisition of any interest in real property; discussions involving personnel matters; II -30- z cases involving discipline of public school children; de- !! of security devices; collective bargaining ses- sions of school districts; and meetings of bodies wholly fi- nanced by federal funds. The Attorney General has ruled ;` that city boards and commissions which have no rule- making or quasi - judicial power are not required to comply with the open meeting and notice requirements of the Open Meetings iND Law. Article 6252 -17, V.A.C.S., contains a requirement that no final action will be taken on any matter considered by the governmental body in a closed meeting unless the meeting in which the final action is taken is open and properly posted. That requirement indicates that, although a govern- mental body may deliberate in a closed meeting, it must vote or make any final decision on the matter in an open meet- ing. Further, closed meetings are limited to the subjects of pending litigation, personnel, and land acquisition. I I, POSTING NOTICE The notice or posting requirements of a meeting of a city governmental body require that "Written notice of the date, hour, place, and subject of each meeting..." shall be "...posted on a bulletin board to be located at a place con- venient to the public in the city hall for...at least 72 hours preceding the scheduled time of the meeting...." The law allows an emergency meeting to be called by the govern- mental body by posting notice, stating the emergency or "ur- gent public necessity" in the notice two hours before the meeting is convened. Supplemental items may be added to a regularly posted meeting notice and agenda by posting the same as a supplemental item and stating the emergency or "urgent public necessity" therefore in the notice. Neither emergency nor "urgent public necessity" is defined by the I/ Act, and neither the courts nor the Attorney General has spoken on the subject, so it appears that the governmental body can interpret those terms in any reasonable manner. r EXCEPTION TO POSTING NOTICE The State Legislature passed House Bill 1796 which ex- empts from notice posting requirements any matter raised by a member of the general public present at an open meeting. Also exempt are factual discussions by the governmental body about matters of existing policy at such meetings. 11 -31- 1 I II 1 II PENALTIES No discussion of the Open Meetings Law would be complete 1 without discussing the penalty provisions. What can happen if you violate the requirements of the law? A fine of not less than $100 nor more than $500 or imprisonment in the II county jail for not less than one month nor more than six months, or both fine and imprisonment, can be imposed. If you have ever seen the inside of the county jail, then you will realize that this could be serious business. The pen - 1 alties stated above can be imposed for the following ac- tions: 1. Willfully calling a closed meeting. II 2. Willfully aiding in calling a closed meeting. 3. Willfully closing a regular meeting. 4. Willfully aiding in closing a regular meeting. 5. Willfully participating in an unlawfully closed 11 meeting . 6. Conspiracy by a member or members of a governmental body to circumvent the provisions of the Open Meet - 1 ings Law by meeting in numbers less than a quorum for the purposes of secret deliberations. According to news reports, the last time some Texas II County Commissioners got caught participating in an unposted meeting, the District Attorney chose to refer the matter to the Grand Jury, rather than file charges, and the Grand Jury chose not to indict. Perhaps, the moral to that story is II that if you ever run out of friends on the Grand Jury, don't participate in an illegally closed meeting. 11 II 1 1 1 1 II -32- 1 1 1 1 1 1 1 1 1 APPENDIX 1 1 1 1 1 1 1 1 1 APPENDIX A Meeting Planning Guide +• Name of Board Location Time Date Purpose(s) r. Anticipated objectives: 1. To vir 2. To 3. To 4. To 5. To Expected speakers, Presenters or Guests 1. 2. 3. 4. 5. Agenda Outline lin ire -34- w Minutes Preparation at Meeting & Afterward Who will take minutes at the meeting? Who will prepare the minutes and distribute them? To whom will they be distributed? 1. 2. 3. 4. 5 1 6. 7. 1 8 . 9. 10. Staff Assignments 1 1 Arrangements 1 Room Size Paper & Pencil Availability Seating No. and Amplification (microphone, Location etc.) Lighting Audio /Visual Aids Heating /Cooling 1 ' -35- vi E a) 0 N a) L f'-' L ct3 W a) 2 2 0 a) } a) a) O 5 (.9 o m o n W W w c W c cz1 c: E a) co ci L U ci m O U E C O U o >, >. - 0 Q) L a) T Q) .- O 0 a) c _ 2 a) U > D N - 0 Q) _ O — O C Q) c (o a) ro E (1) m • a) a) CI) a) as Y O O ca (11 — U — (n C (n - 6 O U - (n C «• ' a) L _ c al Q) • a) c E co' o c E o o a c . C •-- N C') V tf) c0 N.: :6 Q) O co cu v— a 2 —36— 1 1 1 1 I 1 I vi C 0 co I as E I Y_ 0 O C L O I U — (n p O } W O - - c II II II I 0 cL3 LC) 0 CI) CO N- o 0) ' ' a) E O o -0 E. 1 o co O O m 0 U) >. C a) v) > I o c (r) _c) 0) � o o a i a ti; D o 0 a c 1 ci - O co L L w- a) a) 73 - (f) m a) T 7 V c� a m -0 o a) U __ _ O a) (1) C .0 a '6 c - o Q. 5 U N . C >+ - O 10 () O cn — O O O a) 0. as ° c c E ° c 0 1.-_-. o a E E o aE) U U E .E N d Q 0) U U E (O .0 D 0 N (') t (C) (D N- CO Q) O 1 (n •-• r- r r r •- r-- 1 N 0 1 - 37— ,:omnittee Creating 1 of Length embership Meetings Duties and Responsibilities Authority Members of Term Requirement; Ambulance five (5) No set two (2) At least two (2 It shall be the duty of such committee to submit III Advisory terms ttizens, times per year to the Council, from time to time, its recommendations Comr :ittee ospital re), as to new specifications for emergency ambulances and fire chief, its recommendations according to the city code of EMS rep. ordinances. Cemetery six (6) two (2) citizens, On call by To advise the City Council regarding policies relating Committee years qualified chairman to the city owned and operated cemetery. voters Community City eleven two (2) yr . citizens, On call by It shall be the duty of said committee to advise the Appearance Council (11) qualified chairman City Council and promote community appearance. Committee Minutes, voters 4/27/80 Community five (5), two (2) yr citizens, On call by It shall be the duty of said committee to promote Center Advisory two (2) qualified chairman guidance to the City Council on the operation, use, Committee alter- voters and promotion of the city Community Center na to s Joint Airport City ord. nine (9) At pleasur two (2) fron On call by Duties of said board shall be to recommend to the City Zoning Board 11280, of the Col. Sta., chairman Councils the boundaries of the various zones to be Art. 46e- City Counc 1 two (2) established and the regulations to be adopted therefore 1 to 46e- from Bryan. 15, V.A.C.S. two (2) fron Brazos County Commissioner's Court, two (2) from Burleson Canty Commissioner's Court, and one to 5e elected by t semembers to serve as chairman. I Electrical City ord. five (5) At pleasure one (1) mutt On call The city's electrical Board is responsible for issuing Examining 4629 of the City be a city liacenses to electricians. The board shall review Board Council emp. from applicants for license, determine if their experience II the bldg. is such that they are qualified to take the examination dept., and grade said examinations, and determine by majority one (1) must vote that a license shall or shall not be granted. be a licen!ed master electrician I by the citl Parks and City ord. seven (7) two (2) yrs citizens, Every 2nd Tues. The duties of said board shall be to adivse and Recreation ;1177 qualified of each month, recommend to the City Council on all matters concerning 3oard voters 7:00 p.m. the establishment, maintenance, and operation of re- creation programs conducted by the City of College i Station for its inhabitants. The board shall also carry out all other duties and responsibilities as may be assigned by the City Council. III Plumbing C ity ord. seven (7) four (4) (1)licensed On call by Arc. 6247- The duties of said Board shall be to hear appeals appeals and 2 1108 yrs. aster plumber chairman from any person, firm or corporation aggrieved by any Advisory (lllicensed interpretation of the Plumbing Code or by any decision Board 101,V.A.0 S. journeyman or ruling by the Plumbing Inspector under the City .lumber Plumbing Code. Said board shall also submit to the (I) buildinc City Council such recommendations for the improve- , ontractor ment and revision of the Plumbing Code as it may from (1) City time to time deem necessary. ngineer (1) City lealth Officer (1) license< architect o' alternate (1( Senior •lumbing inspector Planning and :ity ord. seven (7) two (2) itizens, Every 1st and The duties of the Planning and Zoning Commission are to Zoning 1682, 11234, yrs. )ualified )rd Thursday at advise the City Council in the preparation, adoption. _orvnission and Art. oters 7:00 p.m. and modification of the comprehensive plan of l 011f development of the City, for approval and adoption by J.A.C.S. resolution by the , .'tty Counr; I. 1 I — 38- Committee :reatanq 1 of Length — Membership meetings Duties and Responsibilities Authority Members of Term Requirement: Safety :ity Council two (2) yrs citizens, On call by It shall be the duty of said committee to make Committee linutes, eight qualified chairman recommendations to the city concerning safety on the I 1/27/70 (8) voters highways, and at intersections in the city, and to all matters of public safety. Structural :ity ord. five 15) three (3) (1) architEct Regularly The duties of said board shall be to consider Standards 1528, years (1) general each month and determine whether or not a particular building, I Board/ 11128 and contractor on call by dwelling or structure is an unsafe building within Building Code \rt. 1269: (1) engineEr chairman the meaning of the city code and a public nuisance. Doerd of V.A.C.S. (2) member! at Adjustments large from the bldg. indu!try I Teen Center twelve (1!), one (1) Students it On call by Said Board shall suggest to the City Council on matters Board four (1) year good stand•nq chairman of concern to the Teen Center, such as the furnishing alternate: in the Cit,'s of equipment, fund - raising, and the establishment of School Dis'rict rules and regulations pertaining to the Teen Center. Zoning Board City ord five 151, two (2) :itizens, Every 3rd Tues. Said board hears requests for variances and use permits of Adjustments 1850 (2) alt- years qualified of the month, and decides appeals relative to the Zoning Ordinance. sec.11, ernates voters at 7:00 p.m., Board shall also have those responsibilities as out - Art. in the Council lined in City ordinances 8850, Sec. 11, 11301, Sec. D. 1011g, Chambers and 11280. Also, Art. 46e- 10(1) -)4), and Art. I011g. i V.A.C.S, V.A.C.S. 1 1 • 1 1 1 1 1 1 1 1 1 1 -39-