Agenda Packet TC 02/01/2010 - SupplementTexas
Municipal
League
January 21, 2010
Number 1
SENATE INTERIM COMMITTEES
WILL STUDY CITY -RELATED TOPICS
Lt. Governor David Dewhurst has instructed the committees of the Texas Senate to
conduct dozens of studies prior to the 2011 legislative session. Many of those studies can
impact cities. Descriptions of the major city -related studies are reprinted in their entirety
below. TML will monitor the progress of each study.
Business and Commerce Committee
• Study the generation costs of municipally -owned electric utilities' planned
generation portfolios. Consider the impact of planned generation costs on electric
rates for residential and commercial customers. Solicit input on the impact of
future electric rates on charitable and non-profit organizations, and the impact on
such organizations' cash assistance programs to indigent customers. Consider the
merits of a justifiable planned generation cost standard, and whether a deviation
above the standard should be subject to approval by a vote of all customers of a
municipally -owned utility's service area.
Criminal Justice
• Study the efficiency and fairness of the current sexual offender registry system
and make recommendations to improve the system, if necessary. Study the issue
of compliance with the Adam Walsh Act, focusing on the associated costs to the
state and the punishment of juveniles. Examine the risk assessment tools used to
measure the likelihood of recidivism of sexual predators.
• Review statistics regarding the crime of driving while intoxicated, including
accident statistics, alcohol -related deaths and injury, and other impacts on the
community. Examine enforcement options used nationwide to deter driving under
the influence and make recommendations to reduce the number of alcohol -related
traffic fatalities and accidents in Texas.
• Study and make recommendations related to municipal jails and other
detention facilities that operate without state agency oversight. Identify the
number of such facilities and the population detained, as well as best
practices for municipal jails. Make recommendations to improve services
and consider options for oversight of facilities by the Texas Commission on
Jail Standards.
• Review the detention of juvenile offenders in local jails, state jails, and Texas
Department of Criminal Justice prison units by examining conditions of
confinement, including quality of education, mental health treatment and medical
services, rehabilitative treatment, and equality of access to services for young
female inmates. Review access to administrative and inspector general grievances
in TDCJ facilities. Make recommendations for improving the system and
reducing recidivism for juvenile offenders.
• Study and make recommendations to ensure the accuracy and timeliness of testing
done in Texas forensic laboratories, including DNA and blood/alcohol testing.
Assess and make recommendations for improving the capacity of Texas criminal
laboratories to process evidence, identify ways to reduce the backlog of DNA
evidence processing, identify ways to encourage qualified applicants for crime lab
jobs, ensure adequate training for new crime lab technicians, ensure the
availability of efficient crime lab processing to all regions of the state, and
determine the impact of additional collection requirements on the capacity of
Texas crime labs to process evidence. Consider the costs and benefits of creating
a statewide crime lab.
Economic Development
• Assess the effectiveness of major economic development programs in Texas. The
review should include, but not be limited to, such programs as the Enterprise
Fund, Emerging Technology Fund, Skills Development, and Enterprise Zones.
Review major tax policy issues that encourage or hinder business development,
including options for reinstating a margins tax research and development tax
credit. Examine economic development programs in other states that have been
successful and recommend changes to existing state programs, new programs, or
changes in tax policy incentives that could increase job creation in Texas.
2
Finance
• Review and make recommendations regarding existing and future public
debt at all levels of government in Texas including independent school
districts, cities, other local governments and the Texas Guaranteed Tuition
Plan.
• Identify and evaluate potential improvements to the property tax system.
Consider and make recommendations relating to the following:
o Methods to increase public participation in the tax rate -setting
process and ensure fairness in appraisal protests and appeals;
o Requirement that property appraisal values may not increase by
more than inflation and/or population growth, or another amount to
be determined by local taxing authorities, with a maximum cap of 10
percent; and
o Exemptions provided to community housing development
organizations to determine if changes are needed to ensure that the
public benefits outweigh the revenue loss.
• Examine transportation funding concepts contained in legislation considered
during the 81 st Legislature, Regular and Special Sessions. Analyze options and
make recommendations relating to historical funding strategies, including
prioritization of existing revenues, as well as alternative state and local
transportation funding concepts. (Joint charge with Senate Transportation and
Homeland Security Committee)
Government Organization
• Review opportunities for increasing the transparency of government operations
and make recommendations for enhancing public access to government.
Intergovernmental Relations
• Monitor the proliferation of municipal utility districts (MUDS) outside the
corporate limits or extraterritorial jurisdiction of municipalities and whether
increased oversight of these districts by other political subdivisions is needed.
Review the process for the creation of municipal utility districts (MUDS) through
the template developed during the 8 Vt Legislative Session, including any changes
needed to increase the efficiency and oversight over the creation of proposed
districts. Review the process for creating special districts, including whether the
creation of a template, similar to the one created for municipal utility districts
(MUDS), is feasible and would enable the legislature to more effectively evaluate
other proposed special districts during future Sessions.
• Review the process and costs for local governments to make government
information available online. Consider ways to encourage local governments
to provide more transparency, including the Comptroller's experience with
transparency and her offer to assist local governments, and consider
penalties for entities that fail to comply with the online requirement.
3
• Review state and local policies related to development and growth in rural
and unincorporated regions of the state with regard to annexation and
zoning authority. Focus on impacts to private property rights. Determine the
appropriateness of existing extraterritorial jurisdiction authority. Make
recommendations regarding possible changes to this authority.
• Review the types of support state government can provide to assist local
government consolidations with county governments. Evaluate budget
implications for city and county government consolidations. Research the
appropriateness and cost savings of eliminating duplicity between city and county
governments in different regions of the state.
• Review the statutory authority granted to municipal management districts
(MMDs) and to emergency service districts (ESDs), and the authority of
municipalities and counties to create public improvement districts (PIDs).
Determine whether the authority granted for each entity is adequate to accomplish
the goals of local governments. Assess whether the consolidation of ESDs under
one statute would improve uniformity and provision of fire and emergency
services through these districts.
Intergovernmental Subcommittee on Flooding and Evacuations
• Study the benefit of legislation that would require coastal regions, when making
routine improvements to drainage systems and other infrastructure, to take into
account probability of future flooding and any upgrades necessary to prevent
future flooding.
• Study and make recommendations on methods of emergency notification during a
natural disaster. Look into alternative systems and new technologies for rerouting
911-type calls to become more efficient and effective. Study and make
recommendations to streamline the process of informing citizens impacted by an
emergency or disaster prior to the event about re-entry and aid.
• Study and make recommendations relating to cost effective options to either
retrofit or require new building structures to be built as shelters for use during
future evacuations.
State Affairs
• Study the adequacy of workers' compensation benefits in the following
categories: lifetime income benefits, wage benefits for the high wage earner, and
workers whose wage benefits stop before Social Security benefits begin. In order
to determine the impact of increased benefits in one or more of these categories,
work with the Texas Department of Insurance to develop a publicly accessible
model to predict the costs related to those enhanced benefits, the effect of those
costs on workers' compensation premiums, and whether enrollment in the
workers' compensation system will be adversely impacted by increasing the
benefits in one or more of the stated categories.
• Study the Public Information Act and the Open Meetings Act to ensure that
government continues to operate in a way that is open and transparent. The
study should consider how advances in technology and the emergence of
various forms of social media (e.g. Facebook, MySpace, Twitter) have
affected communications by and within governmental bodies.
Transportation and Homeland Security
• Review and make recommendations relating to the Texas Department of
Transportation's organizational structure and working relationship with local
governments, Metropolitan Planning Organizations, Regional Tolling Authorities
and Regional Mobility Authorities.
• Explore the policy implications of transportation reinvestment zones funded by
state sales and use taxes as an alternative to public financing of transportation
projects.
THE TEXAS OPEN MEETINGS ACT
AND CAMPAIGN SEASON: INCUMBENTS BEWARE!
As campaign season approaches, new candidates and incumbents seeking elected
municipal positions will be asked to participate in a variety of political events. Candidate
forums and fundraisers are two examples. For new candidates, the Texas Open Meetings
Act (Act) does not apply because they are not yet members of the city council. For
incumbents, however, the Act may create legal pitfalls.
The Act is intended to allow the public to view the business of the city council. But does
the Act distinguish between official meetings and campaign gatherings of the city
council? Absolutely not. If a gathering of a quorum of incumbents takes place
anywhere, a "meeting" of the city council may have occurred, and all the Act's
requirements (e.g., a properly posted agenda, public access, and a specific listing of
subject matter) may apply.
Several attorney general opinions (available online at the attorney general's Web site)
have broadly interpreted the definition of a meeting to include the attendance by a
quorum of a governmental body at various lectures or gatherings. For example, opinion
JC-0203 (2000) concludes that the Act applies if: (1) a quorum of a governmental body
attends the same speaking engagement or lecture; (2) an attending member participates in
the discussion; and (3) the deliberation relates to public business or public policy over
which the quorum of the governing body in attendance has supervision or control. See
also opinions JC-0248 (2000) and JC-0308 (2000). Thus, if a quorum attends a chamber
of commerce meeting, and discussion there concerns an issue over which the city council
has authority (e.g., street repairs or economic development incentives), councilmembers
may not participate in the meeting unless all requirements of the Act are met.
Consequently, the Act would apply if a quorum of a city council attends a "candidate
forum" to debate among new candidates, themselves, or to answer questions from an
5
audience. Why not just post the forum as a meeting of the city council? That's a
possibility, but in that case the dilemma is the inability to list the items for discussion.
The attorney general concluded in opinion GA-0668 (2008) that general postings such as
"Council and Other Reports" provide insufficient notice to the public. The same would
be true of a candidate forum. For example, posting an agenda listing "candidate forum to
discuss campaign matters" would be insufficient for incumbents to discuss any specific
matter in detail.
The Act does allow a municipal elected official certain latitude at a properly posted
meeting. Section 551.042(a) provides that:
If, at a meeting of a governmental body, a member of the public or of the
governmental body inquires about a subject for which notice has not been
given..., the notice provisions of this subchapter do not apply to: (1) a
statement of specific factual information given in response to the inquiry;
or (2) a recitation of existing policy in response to the inquiry.
Section 551.042(b) further provides that: "[a]ny deliberation of or decision about the
subject of the inquiry shall be limited to a proposal to place the subject on the agenda for
a subsequent meeting." However, attorney general opinion JC-0169 (2000) provides that
"[t]his provision relates to `inquiries' from members of the public. Its purpose is to
authorize a governmental body to make a limited response to an inquiry from the public
about a subject not included on the posted notice and to prevent it from engaging in
'deliberation'... about the subject matter of the inquiry. When an inquiry or a comment
from a member of the public requires such deliberation..., members of the governmental
body may respond merely that the matter shall be placed on a future agenda." Thus,
while a new candidate could respond in detail, an incumbent would arguably have to state
that he or she cannot do so at the present time, and it is unlikely that attendees would
understand why.
What about fundraisers? To begin, the following do not constitute meetings under the
Act:
1. the gathering of a quorum of a governmental body at a social function
unrelated to public business; or
2. 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.
For example, if a quorum attends a Texas Municipal League Conference, that attendance
is not generally subject to the Act so long as the members do not take formal action or
more than incidentally discuss public business. In addition, if a quorum attends a cocktail
party for a friend's birthday or something similar, the Act does not apply.
IN
Some fundraisers could arguably be classified as social functions, but it remains
questionable as to whether that social function is "unrelated to public business." Case in
point: an incumbent councilmember in a central Texas city attended a private fundraising
event held on his behalf. A quorum of other incumbents was present (although none sat
at the same tables). The event was essentially a social function, but the incumbent was
asked to give a short speech at the end of the evening. His speech was intentionally
focused on his local heritage and connection to the community, rather than any specific
items related to city business. Technically, that speech shouldn't violate the Act. The
councilmember's position was that the event was a social one, and his presentation
wasn't about "city business" per se.
However, a person in the audience asked an inflammatory question relating to whether
the councilmember knew that his constituents believed that he was a poor steward of
taxpayer dollars. The councilmember answered in a general way. According to the
councilmember, an opponent reported the exchange to the local county attorney's office.
The report led to a criminal investigation into the incumbent's behavior at the fundraiser.
Ultimately, no charges were filed, but the event led to much publicity regarding the
incumbent's integrity.
The League certainly has no position on who is the best candidate for any city council
position; that's up to the voters of each city. But every incumbent should be aware of the
pitfalls described above. The following ideas may be worthy of consideration:
1. A city might wish to establish procedures for giving proper notice if a
quorum will attend outside gatherings, and/or warn councilmembers of
the danger of public discussions.
2. If compliance with the Act is not possible because the gathering is not
accessible to the public or notice has not been posted, the members in
attendance may not deliberate or answer questions regarding subject
matter that is within their supervision.
3. If a member is invited to comment on issues raised by attendees, he or
she should decline to address subjects within the jurisdiction of the
city council, explaining that under the circumstances his or her
remarks would violate the Act.
Keep in mind that the suggestions above are based on existing legal precedent, regardless
of whether that precedent is a correct or incorrect interpretation of the Act. City officials
should consult with their local legal counsel to determine the proper course of action in
any given situation. With regard to candidate forums and fundraisers, it appears that the
Act may hinder the free flow of ideas from incumbents to their constituents, while
providing new candidates with a political advantage.
In the case of a candidate forum or fundraiser, does the Act violate an incumbent
councilmember's right to freedom of speech under the First Amendment to the U.S.
Constitution? You decide.
7
CITY FUNDING OF CONTINUATION OF
HEALTH BENEFITS IS EXTENDED
The Consolidated Omnibus Budget Reconciliation Act (COBRA) is the federal law that
requires employers, including cities, to offer continuation of health benefits to certain
employees and their family members if the employee is terminated or otherwise loses his
or her health benefits with the city. In the past, a city was not responsible for paying for
that continued health coverage under COBRA, but could do so if it chose to. However, a
new law, passed as part of last year's federal stimulus package, requires cities to pay 65
percent of the cost of the continued health benefits if an employee is involuntarily
terminated for a reason other than misconduct. The city is then reimbursed for the
payment through its payroll taxes.
The new requirement has recently been extended to employees who lose their health
insurance through February 2010. For more information, go to
http://www.dol.gov/ebsa/cobra.html. This topic will also be discussed in the Legal Q&A
section of the February issue of Texas Town & City magazine.
Contact Laura Mueller at the TML Legal Department with questions at (512) 231-7400
or lauragtml.org.
MUNICIPAL COST INFLATION RISES SLIGHTLY
The Municipal Cost Index (MCI), developed exclusively by American City and County
magazine, shows the effect of inflation on the cost of providing municipal services. The
MCI is used to study price trends, make informed government contract decisions, and
facilitate sound budget planning.
According to American City and County magazine, the MCI for December was 206.9.
That's 0.2 percent higher than last month's MCI, but still a decline of 1.8 percent over the
previous 12 months. The December 2008 MCI was 210.6.
TCEO TO REVIEW SURFACE WATER
QUALITY STANDARDS
Surface water quality in Texas is governed both by Section 303 of the Federal Clean
Water Act and Chapter 26, Subchapter D, of the Texas Water Code. Under those
statutes, the Texas Commission on Environmental Quality (TCEQ), sometimes under the
direction of the U.S. Environmental Protection Agency (EPA), creates rules and
standards to monitor and protect surface water quality in Texas. These "Texas Surface
Water Quality Standards" are important for cities, especially those with wastewater
treatment plants because those plants affect the levels of certain biological and chemical
N.
substances that the city may discharge into surface waters. Over the past two years, the
TCEQ has held several meetings regarding proposed changes to the surface water quality
standards and accompanying implementation procedures (IPs) in Texas. These proposed
changes include the following:
• The existing contact use categories for surface water bodies. Currently,
surface waters are designated by their potential use as either primary contact
recreation (high likelihood of recreational use/water must be suitable for
ingestion) or non -contact recreation (low likelihood of ingestion/water is
unsuitable for recreational use). The proposed standards would create new
categories in between these existing levels: "secondary contact recreation 1" and
"secondary contact recreation 2." These new categories will allow for certain
waters that do not have a high likelihood of recreational use or ingestion to have
slightly modified water quality standards for certain pollutants.
• Bacteria measurements and limits. These proposed changes would govern the
way in which standards -attainment is calculated and would create an exemption in
certain cases where water flow is high during collection.
• Current standards and procedures for nutrient testing. This may include
changes to how chlorophyll a is used in nutrient standards attainment testing.
• Whole Effluent Toxicity (WET) testing and procedures. The proposed
standards include stricter requirements for sublethal testing (where organisms
survive but fail to reproduce at a specific toxicity level) and subsequent limits.
Most of these changes will be in the IPs.
The anticipated publication date for the new proposed standards and IPs in the Texas
Register is January 29, 2010. However, the proposed standards and IPs may be viewed
now on TCEQ's Web site at
http://www.tceq.state.tx.us/assets/public/legal/rules/rule_lib/proposals/07002307 pro.pdf
(standards) and
htlp://www.tceq.state.tx.us/assets/public/legal/rules/rule lib/proposals/07002307_IP.pdf
(IPs). The comment period will run from January 19 through March 17, with a public
hearing at the TCEQ offices in Austin on March 11, 2010. The rule project manager at
the agency is Debbie Miller, who may be reached at (512) 239-1703.
The proposed changes can affect a wastewater discharger's permit requirements leading
to significant expenses to ensure compliance. The League has monitored and participated
in the process for over two years. If you have questions about surface water quality
standards or how to become involved in the process, please contact Lauren Crawford at
the TML Legal Department at (512) 231-7400.
E
ATTORNEY GENERAL DECISION GIVES CITIES MORE
FLEXIBILITY UNDER THE PUBLIC INFORMATION ACT
The attorney general recently released ORD 684, an open records decision that serves as
a "previous determination" allowing governmental bodies, including cities, to withhold
several categories of requested information without the necessity of first requesting a
decision from the attorney general. ORD 684 allows cities to more efficiently respond to
requests under the Public Information Act by giving them the ability to withhold
information if it fits within the categories described in the decision. According to the
attorney general, the purpose of ORD 684 was to encourage "governmental bodies to
quickly release clearly public information to requestors while saving the time and
expense involved in seeking a decision on specific, clearly delineated categories of
information the Legislature has deemed confidential." The ten categories of information
covered by the decision are:
• Direct deposit authorization forms;
• Employment Eligibility Verification Form I-9 and attachments;
• W-2 and W-4 forms;
• Certified agendas and tapes of executive sessions;
• Fingerprints;
• L-2 and L-3 declarations;
• Motor vehicle record information under 552.130;
• Access device information under 552.136;
• E-mail addresses of members of the public under 552.137; and
• Certain military discharge records.
To read the decision, please visit
http://www. oag. state.tx.us/opinions/openrecords/50abbott/ord/2009/htm/ord2009O684.ht
in.
NATIONAL LEAGUE OF CITIES (NLQ FILES
PETITION FOR RECONSIDERATION IN FCC CELL
TOWER SITING PROCEEDING
Last November, the Federal Communications Commission (FCC) issued an order that,
among other things, sets presumptive deadlines of 90 days (for co -location applications)
and 150 days (for all other wireless siting applications) within which a city must act on
wireless tower applications. (See the December 10, 2009, edition of the Legislative
Update for background information) The following is an update from the National
League of Cities on a challenge to that order.
10
On December 17, NLC, joined by the National Association of Telecommunications
Officers and Advisors, the National Association of Counties, the United States
Conference of Mayors, and the American Planning Association, filed a Petition for
Reconsideration with the FCC as to a part of the FCC's recent ruling developing a "shot
clock" for tower siting application review.
Although the entire rule and the FCC's claim of legal authority to issue are troublesome
to NLC, the petition focused on one of the most troubling aspects of the ruling. In
addition to establishing deadlines of 90 days for collocation application reviews and 150
days for reviews of all other applications, the ruling gave a local government the ability
to toll those shot clocks when an application was "incomplete." However, the local
government would only have the power to toll the shot clock because the application was
incomplete if it discovered the incompleteness within 30 days of when the application
was submitted. This rule has the potential for serious unintended consequences,
especially when problems with an application are only apparent after 30 days through no
fault of the local government, or when third parties (or the applicant) hold up the review
process.
The groups' petition focused on this 30-day incompleteness deadline. First, the petition
argues that the FCC (even under its own, incorrect, understanding of its authority)
exceeded its power by issuing this rule. Second, the petition discusses some of the
numerous practical problems with the 30-day incompleteness deadline. Third, the
petition expresses our concern about the origin and thought process behind this rule when
the rule wasn't requested by the initial petitioner (the national wireless association), was
included without discussion in any party's comments or ex parte presentations, and was
included without preliminary discussion with any local government.
The petition requested that the FCC remove or revise the 30-day deadline and give local
authorities the ability to toll the shot clock for legitimate reasons at any point during the
review process. To accompany this petition, the groups also filed an Emergency Motion
for Stay requesting that the Commission suspend the entire ruling or at least the 30-day
incompleteness deadline until there is more deliberation on this issue.
The petition does not address the FCC's legal authority to institute the 90- and 150-day
shot clocks. The petition makes clear to the FCC that we are not accepting their
argument that they acted within their authority.
Reprinted with permission from the National League of Cities. In addition, the City of
Arlington, Texas, recently filed a petition for review of the FCC order with the United
States Court of Appeals for the Fifth Circuit. Arlington's petition alleges that the FCC
had no statutory authority to issue the order.
11
MAY 2010 ELECTION LAW CALENDAR
In years past, the Texas Municipal League legal staff has prepared an election calendar
for general law cities. The calendar, which spelled out various deadlines for the May
general election of city officers, appeared in each January issue of Texas Town & City
magazine. Other groups annually prepare calendars as well. One of those groups is the
Texas Municipal Clerks Association (TMCA), a TML affiliate. Because of the
outstanding calendar prepared by TMCA, the League will no longer prepare a separate
calendar. The TMCA calendar is now available online at
http://municlerks.unt.edu/pdf/electioncal2010.pdf. The League's legal staff remains
available to answer election -related questions.
TML member cities may use the material herein for any purpose.
No other person or entity may reproduce, duplicate, or distribute any part of
this document without the written authorization of the
Texas Municipal League.
12
ARTMOS
energy
David J. Park
Vice President
Rates & Reoulatory Affairs
January 21, 2010
City Official
Re: Rider GCR - Rate Filing under Docket No. 9762
Enclosed is Atmos Energy Corp., Mid -Tex Division's Statement of Rider GCR
applicable for the February 2010 billing periods. This Statement details the gas cost
component of the residential, commercial, and industrial sales rates for customers
within your city. This filing is for informative proposes only and no action is required
on your City's part.
Should you have any questions, please let me know.
Sincerely,
Attachment
Atmos Energy Corporation
5420 LBJ Freeway, Suite 1862.
Dallas, TX 75240
P 214-206-2568 F 214-206-2126 David.Park@atmosenergy.com
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