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M E M O R A N D U M

TO: The City of Keene City Council

FROM: City Attorney Robert F. Brown (writing on behalf of The City of Keene Charter Amendment Review Committee)

CC: City Administrator Bill Guinn; City Secretary Keesha Lay DATE: May 22, 2014

RE: Report of the Committee on the Draft Charter, Propositions and Ballot

Language

I.

Introduction

In February, the City Council appointed the members of the Charter Amendment Review Committee (“Committee”). Those appointed, including two alternates, were Betty Ballard, Richard Bothe, James Chapline, Nick Chesney, Robert Cooper, John Engle, Gary Heinrich, Billie Hopps, Lorena Marin, Michael Nightingale, David Patterson and Roy Robinson. Bill Guinn, Keesha Lay and I were appointed as non-voting support staff to the Committee. The Committee, after appointing former Mayor Heinrich as its Chair and former Mayor Robinson as Vice-Chair, met 5 times to review, debate and discuss the Charter. After meetings held on March 20, April 8, April 14, April 23 and April 29, the Committee finalized its review and authorized me to provide this report to you on behalf of the Committee. The final suggested Committee-approved Charter draft (with redlines of the proposed changes) is provided to accompany this report.

II.

Legal Limitations

As a threshold matter, I should note that the pertinent state law limitations on an election amending a home-rule charter and the required notice are as follows:

(c) Notice of the election shall be published in a newspaper of general circulation published in the municipality. The notice must:

(1) include a substantial copy of the proposed amendment;

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(2) include an estimate of the anticipated fiscal impact to the municipality

if the proposed amendment is approved at the election; and (3) be published on the same day in each of two successive weeks, with

the first publication occurring before the 14th day before the date of the election.

(d) An amendment may not contain more than one subject. (e) The ballot shall be prepared so that a voter may approve or disapprove

any one or more amendments without having to approve or disapprove all of the amendments.

Texas Local Government Code §9.004. Although the law requires that the newspaper notice only include a “substantial copy” of the proposed amendments, most cities include actual charter language to be changed in the notice, and TML recommends this procedure to give voters full knowledge of what they are voting on. Additionally, while the law states that any “amendment may not contain more than one subject,” case law supports the grouping together of matters that relate to the same subject, even if the actual provisions may appear in different parts of the charter. The key is whether the proposition gives fair notice to the voters of the subject matter upon which they are being asked to vote.

III.

Suggested Propositions

With these guideposts in place, the Committee’s suggested propositions for amending the Charter to reflect the Committee-approved Charter draft are as set forth below. The propositions are, for the most part, presented in the same order as the underlying Charter provisions of which they seek to amend. The relative importance of the various amendments, however, must be determined by the City Council, which determination will guide how many propositions are to be submitted to the voters. For ease of reference, the propositions are numbered 1 – 13.

PROPOSITION NO. 1

Shall the Charter be amended throughout to (A) correct non-substantive errors such as misspellings, punctuation, grammar, sentence structure and the use of consistent terms; (B) provide non-substantive clarifications and include better descriptive language of the matters addressed in the Charter; and (C) conform the provisions of the Charter to state law? [Addresses changes in Sections 1.01, 1.04, 2.01, 2.03, 2.04, 3.02, 3.03 (in part), 3.04, 3.05 (in part), 3.08(in part), 3.10, 4.01, 4.04, 4.05(in part), 4.06, 4.07, 4.09, 4.10, 5.01 (in part), 5.03, 6.02 (in part),

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6.08, 6.10, 6.11, 6.13, 6.14, 6.16, 6.17, 7.02, 8.02, 8.03, 9.01, 9.02, 10.08, 10.09, 11.01, 11.04, 11.10, 11.12, 11.14, 11.15, 11.17 and 11.18]

PROPOSITION NO. 2 Shall Charter Sections 1.02(B) (C) and (D), 3.06(B)(6), 4.02 and 4.05 be amended to adopt a geographic ward and at large place election system, with Sections 1.02(B) (C) and (D), 3.06(B)(6), 4.02 and 4.05 to read as follows: “SECTION 1.02: FORM OF GOVERNMENT

*** B. Beginning with the November 2015 election, the City Council shall be composed of a Mayor and six (6) Council Members elected under a geographic ward and an at large place system. The Mayor and each Council Member shall be elected at large and, unless sooner removed under the provisions of this Charter, shall serve a term of two (2) years and until their successor has been elected and duly qualified. All of the City Council holding office at the time of passage of any amendments to this Charter shall continue to hold their respective office until the respective term for which they were elected expires.

C. The City shall be divided into three (3) geographic wards, consisting of Wards I, II and III, and three (3) places, consisting of Places 1, 2 and 3. Wards I and III, and Place 2 shall be elected in odd-numbered years, and Ward II, Places 1 and 3, and the Mayor shall be elected in even-numbered years. The three (3) City Council wards shall be defined by ordinance, and the boundaries thereof shall be subject to periodic review by the City Council to ensure equal voting rights for all citizens under state and federal law. City Council ward boundaries shall be redefined by ordinance to compensate for any significant change in population within a given ward. Each Council Member representing a City Council ward must at the time of his or her election and during the term of office reside in the ward which he or she represents. Each Council Member representing a City Council place must reside in the City at the time of his or her election and during the term of office reside in the City, and may reside in any part of the City.

D. The ward system adopted by this Charter in November 1999 shall terminate beginning with the November 2015 election. Beginning with the November 2015 election, Place 1 of Ward I shall be converted to Ward I; Place 1 of Ward III shall be converted to Ward III; and Place 1 of Ward II shall be converted to Place 2, each of which shall be elected in odd-numbered years. Beginning with the November 2016 election, Place 2 of Ward I shall be converted to Place 1; Place 2 of Ward II shall be converted to Ward II; and Place 2 of Ward III shall be converted to Place 3, each of which shall be elected in even-numbered years.” “SECTION 3.06: VACANCIES AND FORFEITURE OF OFFICE

* * *

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B. Forfeiture of Office. A Council Member or the Mayor shall forfeit office if the official:

* * *

6. Ceases to reside in the ward to which elected, if elected to a ward, or ceases to reside in the city, if elected to a place or to the position of Mayor.”

“SECTION 4.02: CITY COUNCIL WARDS, PLACES & TERMS A. All members of the City Council, other than the Mayor, shall be elected by ward or place under the ward/ place system set forth in Section 1.02 of this Charter. All eligible voters shall be entitled to vote for candidates for all places and wards and for the office of the Mayor. B. The Mayor and each Member of the City Council shall hold office for a two (2) year term. The Mayor, Ward II and Places 1 and 3 shall be elected in even-numbered years, and Wards I, III and Place 2 shall be elected in odd-numbered years. C. All members of the City Council, including the Mayor, holding office at the time of passage of this Charter shall continue to hold their respective place and office until their respective term of office for which they were elected expires.”

“SECTION 4.05: QUALIFICATIONS FOR CANDIDACY A. Each Member of the City Council, including the Mayor, shall meet the following qualifications: (1) be a registered voter of the City; (2) for election to a ward, have resided in the City and the ward in which he or she represents for one (1) year before the date of election and continue residency in the City and the ward in which he or she represents during the term of office; (3) for election to a place, have resided in the City for one (1) year before the date of the election and continue residency in the City during the term of office; (4) not hold more than one public elective office; (5) not hold an appointed office of the City excluding boards, committees, and commissions; (6) be at least 21 years of age; (7) not currently be subject to a finding of mental incompetence by a final judgment of a court; and (8) not have been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities. No candidate may file for more than one City office per election.” [Addresses changes in Sections 1.02(B) (C) and (D), 3.06(B)(6), 4.02 and 4.05]

PROPOSITION NO. 3

Shall (A) the Charter be amended throughout to change “City Administrator” to “City Manager” and (B) Charter Sections 1.02(A), 3.03 and 5.01 be amended to adopt a Council-Manager form of government, with Sections 1.02(A), 3.03 and 5.01 to read as follows:

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“SECTION 1.02: FORM OF GOVERNMENT A. The City government shall be a “Council-Manager Government.” Pursuant to the provisions of and subject only to the limitations imposed by this Charter and by the state constitution and statutes, the City Council shall be vested with all the powers of the City.” “SECTION 3.03: MAYOR AND MAYOR PRO TEM The Mayor shall sign all contracts and conveyances made or entered into by the City and all bonds issued under the provisions of this Charter. The Mayor shall be recognized as the official head of the City by the court for the purpose of serving civil process, by the governor for the purpose of enforcing military law, and for all ceremonial purposes. The Mayor shall preside at City Council meetings, and shall be recognized as head of the City government. As a Member of the Council, the Mayor may participate in the discussion of all matters coming before the Council, but shall be entitled to vote only in case of a tie upon all affairs considered by the Council, and shall have no veto power. The Mayor shall nominate and the City Council shall elect one of its Members Mayor Pro Tem to serve a one (1) year term. The Mayor Pro Tem shall act as Mayor in the absence of the Mayor and shall have the same duties and powers as the Mayor when doing so. All legal documents shall be served to the Mayor, City Manager, and/or City Secretary.” “SECTION 5.01: CITY MANAGER A. Powers and Duties. The City Manager shall be the chief administrative and executive officer of the City and shall be responsible to the City Council. The City Manager is appointed by and serves at the will of the City Council. The City Manager shall be appointed solely on the basis of the City Manager’s administrative ability, experience, and training. The City Manager shall administer the business of the City, and the City Council shall ensure that such administration is efficient. The City Council may by ordinance delegate to the City Manager any additional powers or duties it considers proper for the efficient administration of City affairs. Responsibilities of the City Manager shall include the following:

1. Except as otherwise provided in this Charter, the City Manager shall be responsible for, and have the power to appoint, suspend, layoff, demote and/or remove all or any one of the directors or heads of administrative departments. No director or head of any administrative department, however, shall be appointed or removed without prior notice and consultation of the City Council.

2. Supervise and control directly or indirectly all administrative departments, agencies,

officers, and employees, except those exempted by this Charter. Set up job classifications and job descriptions within each department with salaries and wages commensurate with the employee’s ability and qualifications.

3. Attend all City Council meetings acting in a consulting capacity to take part in the

discussion but have no vote.

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4. Prepare and submit an annual budget and be responsible for its administration after it is adopted.

5. Submit to the City Council a report at the end of the fiscal year on the finances and administrative activities of the City for the preceding year.

6. Keep the City Council advised of the financial condition and the future needs of the

City and make such recommendations to the City Council on matters of policy and other matters as may seem desirable.

7. Combine, abolish, or create administrative departments subject to the approval of the

City Council.

8. Have such other powers and perform such other duties as prescribed by this Charter and the City Council, in accordance with State law.

9. Enforcement of all State laws and City ordinances.

B. The City Council shall employ a City Manager by affirmative vote of at least four (4) Council Members. The City Council shall by majority vote determine the City Manager’s compensation. The City Manager shall be chosen upon the basis of executive and administrative training, experience, character, and abilities, without regard to political considerations. Neither the Mayor nor any Council Member may be appointed City Manager while holding office or for a period of two (2) years after his or her term has ended. C. Removal of the City Manager. The City Council may suspend or remove the City Manager at any time by an affirmative vote of at least four (4) Council Members. The City Council shall give the City Manager written notice for removal and/or suspension and give the Manager an opportunity to respond and present a defense against any accusations made. The City Council’s decision in such matters shall be final. D. In the absence or disability of the City Manager, the Mayor will perform the duties of the office with the approval of the City Council.” [Addresses changes in Sections 1.02 (in part), 3.05 (in part), 5.01, 6.02 (in part), 6.03, 6.09, 8.04, and 9.05]

PROPOSITION NO. 4 Shall (A) Charter Section 3.01 be amended to clarify that the Mayor and Council Members are all part of the City Council, but that the terms “Mayor” and “Council Member” are distinct terms, and (B) the Charter be amended throughout to reflect such clarification, with Section 3.01 to read as follows: “SECTION 3.01: CITY GOVERNMENT

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The governing body of the City shall be known as the “City Council of the City of Keene,” hereinafter referred to as the “City Council.” The City Council shall be composed of a Mayor and six (6) Council Members. The terms “Mayor” and “Council Member” are distinct terms and the Mayor is not considered a Council Member unless expressly designated as such in a particular Charter provision.” [Addresses changes in Sections 3.01, 3.05 (in part), 3.06 (in part), 3.08 (in part), 5.03, 6.02 (in part), 6.08, (in part), 6.10, and 8.03 (in part)]

PROPOSITION NO. 5

Shall Charter Section 3.03 be amended to provide that should a Mayor Pro Tem not be nominated by the Mayor and appointed by the City Council during the City Council meeting in which election results are canvassed and new elected officials are sworn, that the City Council may appoint a Mayor Pro Tem at the next regular meeting of the City Council by selecting one of its members without the necessity of the Mayor’s nomination, with Section 3.03 to read as follows: “SECTION 3.03: MAYOR AND MAYOR PRO TEM The Mayor shall sign all contracts and conveyances made or entered into by the City and all bonds issued under the provisions of this Charter, and shall be the chief executive officer of the City. The Mayor shall be recognized as the official head of the City by the court for the purpose of serving civil process, by the governor for the purpose of enforcing military law, and for all ceremonial purposes. The Mayor shall preside at City Council meetings, and shall be recognized as head of the City government. As a member of the Council, the Mayor may participate in the discussion of all matters coming before the Council, but shall be entitled to vote only in case of a tie upon all affairs considered by the Council, and shall have no veto power. The Mayor, at the City Council meeting in which election results are canvassed and new elected officials are sworn, shall nominate and the City Council shall elect one of its members Mayor Pro Tem to serve a one (1) year term. Should a Mayor Pro Tem not be appointed by City Council during the City Council meeting in which election results are canvassed and new elected officials are sworn, the City Council may appoint a Mayor Pro Tem at the next regular meeting of the City Council by selecting one of its members without the necessity of the Mayor’s nomination. The Mayor Pro Tem shall act as Mayor in the absence of the Mayor and shall have the same duties and powers as the Mayor when doing so. All legal documents shall be served to the Mayor, City Manager, and/or City Secretary.” [Addresses changes in Section 3.03 (in part)]

PROPOSITION NO. 6 Shall a new Charter Section 3.06(C) be added to clarify that the City Council is the final judge in matters involving forfeiture of office by a Council Member or the Mayor, with Section 3.06(C) to read as follows:

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“SECTION 3.06: VACANCIES AND FORFEITURE OF OFFICE

* * * C. Determination of Forfeiture. The City Council shall be the final judge in matters

involving forfeiture of office by a Council Member or the Mayor.” [Addresses changes in Section 3.06]

PROPOSITION NO. 7

Shall Section 3.08(A) of the City Charter be amended to remove the strict requirement that the City Council meet every other week and allow the City Council to set its own reasonable working schedule, with Section 3.08(A) to read as follows: “SECTION 3.08: MEETINGS OF THE CITY COUNCIL A. The City Council shall hold regular meetings and as many additional meetings as it deems necessary to transact the business of the City.”

[Addresses changes in Section 3.08(A)]

PROPOSITION NO. 8 Shall Charter Section 3.08(C) be amended to reduce the number of Council Members needed to call a special meeting from four (4) to two (2), with Section 3.08(C) to read as follows: “SECTION 3.08: MEETINGS OF THE CITY COUNCIL C. Special meetings may be called by the City Secretary on the written request of the Mayor or

any two (2) City Council Members. All City Council meetings shall be held at City Hall or at such place in the City that will permit the attendance of the general public. All City Council meetings and all sessions of the City Council shall be open to the public; however, the City Council may recess for the purpose of discussing in an executive session those matters permitted by State law.”

[Addresses changes in Section 3.08(C)]

PROPOSITION NO. 9 Shall Charter Section 7.01 be amended to clarify that members of boards and commissions are considered City officers for purposes of the Texas Open Meetings Act, with Section 7.01 to read as follows:

“SECTION 7.01: BOARDS AND COMMISSIONS - GENERAL

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The City Council shall be empowered to create and/or disband all boards and commissions that it deems necessary and/or that are required by State law. Members of boards and commissions are considered City officers for purposes of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code, as amended.”

[Addresses changes in Section 7.01]

PROPOSITION NO. 10

Shall Charter Section 10.05 be amended to change the threshold number of petition signatures needed to require an election for recall, initiative and referendum to thirty (30) percent of the total number of the qualified voters of the City that voted in the last regular municipal election, but in no event less than two hundred (200) signatures of registered voters, with Section 10.05 to read as follows: “SECTION 10.05: PRESENTATION OF PETITIONS A. A petition to the City Council for initiative or referendum, containing the signatures of registered voters equal in number to thirty (30) percent of the total number of the qualified voters of the City that voted in the last regular municipal election, but in no event less than two hundred (200) signatures of registered voters, shall be filed with the City Secretary no later than thirty (30) days following the filing of the affidavit by the petitioners committee. Once the petition is filed, no signature may be withdrawn. B. A petition to the City Council for recall, containing the signatures of registered voters equal in number to thirty (30) percent of the total number of the qualified voters of the City that voted in the last regular municipal election, but in no event less than two hundred (200) signatures of registered voters, shall be filed with the City Secretary no later than thirty (30) days following the filing of the affidavit by the petitioners committee. Once the petition is filed, no signature may be withdrawn.”

[Addresses changes in Section 10.05]

PROPOSITION NO. 11

Shall Charter Sections 10.11 and 10.12 be amended to clarify the recall provisions of the Charter, with Sections 10.11 and 10.12 to read as follows:

“SECTION 10.11: LIMITATIONS AND RESTRICTIONS A. No recall petition shall be filed against any official of the City within six (6) months after being elected, or within six (6) months of such a petition being filed with the City Secretary, pursuant to Section 10.05, and found insufficient by the City Secretary or, if applicable, found

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insufficient by the City Council, pursuant to Section 10.07. A new petition for recall cannot be resubmitted within one (1) year after an election for such official’s recall. B. In no instance shall an official removed from office by recall election serve in an elective office of the City within a period of five (5) years following the date of the election at which the official was removed from office. C. Unless withdrawn, no petition shall again be filed on a proposed or referred ordinance of substantially the same content within a period of two (2) years of the failure of the petition at a City election.” “SECTION 10.12: FAILURE OF CITY COUNCIL TO CALL AN ELECTION If all the requirements of this Charter have been met and the City Council fails or refuses to receive the recall petition, or order such recall election, or discharge any other duties imposed on the City Council by the provisions of this Charter with reference to such recall, then any petitioning citizen may file with the appropriate court for a writ of mandamus to force the City to call the election.” [Addresses changes in Sections 10.11 and 10.12]

PROPOSITION NO. 12 Shall Charter Sections 11.05, 11.06 and 11.09 be amended to conform the Charter’s provisions on conflicts of interest, nepotism, and gifts to City officials and employees with State law, with Sections 11.05, 11.06 and 11.09 to read as follows: “SECTION 11.05: CONFLICT OF INTEREST Elected officials, officers, or employees of the City shall abide by all applicable State and local conflict of interest laws. Failure to do so shall constitute a violation of this Charter.” “SECTION 11.06: NEPOTISM Elected officials, officers, or employees of the City shall abide by all applicable State and local nepotism laws. Failure to do so shall constitute a violation of this Charter.” “SECTION 11.09: NO OFFICER OR EMPLOYEE TO ACCEPT GIFTS No officer or employee of the City shall accept any gift, favor, privilege, or employment from any firm, individual, or corporation doing business or proposing to do business with the City in violation of State law or local ordinance regarding such matters.”

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[Addresses changes in Sections 11.05, 11.06 and 11.09]

PROPOSITION NO. 13 Shall Charter Section 11.07 be amended to remove the requirement that certain City employees be bonded unless so required by State law or City ordinance, with Section 11.07 to read as follows:

“SECTION 11.07: SURETY BONDS FOR CITY EMPLOYEES If required by State law or local ordinance, the City Council shall require bonds for City Manager and all municipal employees and officials who receive or disburse any funds of the City. The amount of such bonds shall be determined by the Council, and the cost thereof shall be paid by the City.” [Addresses changes in Section 11.07]

III.

Suggested Ballot Propositions

PROPOSITION NO. 1 YES _______ NO _______

Shall the Charter be amended throughout to (A) correct non-substantive errors such as misspellings, punctuation, grammar, sentence structure and the use of consistent terms; (B) provide non-substantive clarifications and include better descriptive language of the matters addressed in the Charter; and (C) conform the provisions of the Charter to state law?

PROPOSITION NO. 2

YES _______ NO _______

Shall Charter Sections 1.02(B) (C) and (D), 3.06(B)(6), 4.02 and 4.05 be amended to adopt a geographic ward and at large place election system?

PROPOSITION NO. 3 YES _______ NO _______

Shall (A) the Charter be amended throughout to change “City Administrator” to “City Manager” and (B) Charter Sections 1.02(A), 3.03 and 5.01 be amended to adopt a Council-Manager form of government?

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PROPOSITION NO. 4 YES _______ NO _______

Shall (A) Charter Section 3.01 be amended to clarify that the Mayor and Council Members are all part of the City Council, but that the terms “Mayor” and “Council Member” are distinct terms, and (B) the Charter be amended throughout to reflect such clarification?

PROPOSITION NO. 5

YES _______ NO _______

Shall Charter Section 3.03 be amended to provide that should a Mayor Pro Tem not be nominated by the Mayor and appointed by the City Council during the City Council meeting in which election results are canvassed and new elected officials are sworn, that the City Council may appoint a Mayor Pro Tem at the next regular meeting of the City Council by selecting one of its members without the necessity of the Mayor’s nomination?

PROPOSITION NO. 6

YES _______ NO _______

Shall a new Charter Section 3.06(C) be added to clarify that the City Council is the final judge in matters involving forfeiture of office by a Council Member or the Mayor?

PROPOSITION NO. 7

YES ______ NO ______

Shall Section 3.08(A) of the City Charter be amended to remove the strict requirement that the City Council meet every other week and allow the City Council to set its own reasonable working schedule?

PROPOSITION NO. 8 YES ______ NO ______

Shall Charter Section 3.08(C) be amended to reduce the number of Council Members needed to call a special meeting from four (4) to two (2)?

PROPOSITION NO. 9

YES ______ NO ______

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Shall Charter Section 7.01 be amended to clarify that members of boards and commissions are considered City officers for purposes of the Texas Open Meetings Act?

PROPOSITION NO. 10 YES ______ NO ______

Shall Charter Section 10.05 be amended to change the threshold number of petition signatures needed to require an election for recall, initiative and referendum to thirty (30) percent of the total number of the qualified voters of the City that voted in the last regular municipal election, but in no event less than two hundred (200) signatures of registered voters?

PROPOSITION NO. 11

YES ______ NO ______

Shall Charter Sections 10.11 and 10.12 be amended to clarify the recall provisions of the Charter?

PROPOSITION NO. 12 YES ______ NO ______

Shall Charter Sections 11.05, 11.06 and 11.09 be amended to conform the Charter’s provisions on conflicts of interest, nepotism, and gifts to City officials and employees with State law?

PROPOSITION NO. 13 YES ______ NO ______

Shall Charter Section 11.07 be amended to remove the requirement that certain City employees be bonded unless so required by State law or City ordinance?