On July 5, 2018, the City of Plano filed a State District Court lawsuit against Tom Harrison in his official capacity as a City Council member, in the 401st Judicial District Court of Collin County. Since the City is suing Tom Harrison in his official capacity, the City is basically suing itself.
What led the City to sue itself? If you read my last post, COUNCILMAN TOM HARRISON SUES CITY OVER RECALL PETITION, you know that the City and Tom Harrison are already in court. On July 2, 2018, Councilman Harrison's legal team filed a reply to the City's response (brief) to the Court. In the reply Councilman Harrison's lawyer wrote, "“Article 6 was drafted and last reviewed in 1988, a full 23 years before article 7 was added to the Plano City Charter. Thus, it cannot be said that the citizens were considering the words in article 7 when drafting article 6, and the words in article 7 have no impact on interpretation of article 6.” The City's lawyer, Andy Taylor, said that statement is wrong. He writes, "Article 7 has been in existence the exact same number of years—57 years—as has Article 6, because both sections were initially passed by the electorate at the same 1961 election." To prove that statement, the City Secretary went on a search for the original 1961 certified version of the Plano City Charter. As a result of this search, Andy Taylor said, "The City Secretary discovered something that was previously unknown to her—that there appear to be two official versions of the 1961 Charter, not just one." Both Charters bear the seal of the City, and both appear to be the real version of the 1961 Charter. WOW! (Insert sarcasm here) What are the odds? But, wait, there's more. According to Andy Taylor, " In comparing the two purportedly authentic versions, the language contained in Section 6.02 of the Plano City Charter is different. Thus, one version does not contain the word “last,” in Section 6.02, while the other version does use the word “last.” This is amazing! The City Secretary was taken to court over her interpretation of Section 6.02 and, she suddenly finds two Charters from 1961 with different wording in Section 6.02. In case you have not figured this out yet, I am a bit skeptical about all of this. Of course it is my job to be skeptical, I am Plano's Political Pit Bull.
After the discovery of the two Charters, the City Secretary tried to find out which Charter was actually voted on by the citizens in 1961. So far she has not found anything to prove which Charter was voted on. She can't find a single newspaper article or the 1961 Charter election ballot. I find it hard to believe that there is no evidence of what the people voted on in 1961.
The City Secretary then contacted the Texas Secretary of State’s Office to determine what had been sent to the Office in order to certify the election results of 1961. The version Plano sent to the Texas Secretary of State in 1961 contained the word “last” in Section 6.02. However, Andy Taylor says, “The City Secretary has no way of knowing which version was actually considered by the voters. Nor does the City Secretary know if the version sent to the Texas Secretary of State was the correct version passed by the electorate or whether it was an incorrect version sent in error.” Then why contact the TX Secretary of State at all!? Personally, I think the version that was filed with the TX Secretary of State is the legal one, since that was the one filed and certified.
The incompetence gets even worse; the City Secretary has confirmed that the City has been working off of the version of the City Charter that does not contain the word “last” since 1969, which was the first time the charter was codified. Fast forward to 1980 and 1988 when the city held elections to amended the Charter. Since the City was using the version that did not have the word “last” in it, they did not write it on the ballots. I don't think it really matters if “last” was written on the ballots, because that is not what the citizens were voting on. According to the 1980 ballot, the residents were voting to add a requirement that a person signing a petition for recall provide his or her voter registration number. On the 1988 ballot, the residents were voting to amend the Charter to, “provide that each signature on a recall petition shall conform to the requirements for information as set forth in the Texas Election Code.” Yes, the City Secretary found the ballots from 1980 and 1988, but she cannot find the ballot from 1961.
Andy Taylor filed the discovery of “new evidence” (the two Charters) in the 5th Court of Appeals. He also filed, with the Court of Appeals, a notice that the City would be suing Councilman Tom Harrison in District Court. One of Councilman Tom Harrison's lawyers, Adrian A. Spears II, then filed a reply with the 5th Court of Appeals. In it he says, “The City alleges that it has two valid Charters, which is an absurd position and is nothing more than a desperate attempt to delay.” Adrian Spears II also said, “The most troubling aspect of this delay stunt is that the City filed the Declaratory Judgment lawsuit against the Relator [Tom Harrison] in his official capacity as council member and is asking the Court to declare which Charter provision controls. Such lawsuit is not only strange but is frivolous as a lawsuit against a person acting in their official capacity is in reality a lawsuit against the governmental entity. Put simply, the City is suing itself which will lead to nothing more than an advisory opinion as there is no proper defendant.” Spears goes on to slam the City by adding, “Such tactics by the City is a waste of taxpayer money and is forcing Relator [Tom Harrison] to expend funds to squeeze him out. Therefore, the fact that the City filed a lawsuit to try to create a fact issue and divest this Court of jurisdiction is desperate.” In other words, the City is only bringing these two newly discovered Charters to the courts attention to get the case kicked out of the 5th Court of Appeals. Plus, Mr. Spears II believes the City is only suing Councilman Harrison over the two Charters to drain his money.
Mr. Spears II maintains that whichever Charter is the “True Charter”, there is no provision in either of them to look back to a time when a council member was elected, to ascertain the number of signatures required for a recall petition. If the City wanted to add a “look back” provision to the Charter, it should have submitted it to the residents for a vote pursuant to section 11.11 of the City Charter. The City cannot just add a “look back” to Plano's website and claim it is legal.
In my humble opinion, the city should not be suing Councilman Tom Harrison because it “found” two conflicting Charters. In 1961, Tom Harrison was not a councilman. Therefore, he is not responsible for the incompetence of a 1961 city bureaucrat. Councilman Harrison did not serve on the 1961 Charter Commission, so he did not help write the documents. I don't think he even lived in Texas in 1961.
The City has an even bigger problem than it realizes. What if Article 6 is not the only article with different words between the two Charters? The City Charter is basically the Constitution of the City. It is the foundation of how the City is to be organized and run. Suppose that the city has been using the wrong Charter for over fifty years. If that is true, it would have huge legal ramifications. So that we can understand the magnitude of these ramifications, let's look at the following hypothetical. What if this new found Charter says that all ordinances must pass the City Council by a super majority. However, the Charter the city has been following only calls for a simple majority to pass an ordinance. If the newly discovered Charter turns out to be the “true” Charter, every ordinance passed by a simple majority since 1961 could be thrown out. If we have been using the wrong Charter, that also means we have been amending the wrong Charter. Therefore, all of the amendments that have passed could get thrown out. One of those amendments was the number of city council members the city should have. In 1961 we only had five council members and a Mayor. If we have amended the wrong Charter, can we conclude that we have the wrong number of City Council members? What happens to the two extra we have now? Would their elections even be valid? Would they have to step down from Council until a new Charter election takes place? If two have to step down, which two would it be? According to the two 1961 Charters, Council members did not have place numbers, so how would the city decide who steps down? I don't know the answers to any of these questions. The one thing I do know is the discovery of this second Charter has the potential of throwing the City into its own constitutional crisis.
This is Plano's Political Pit Bull Signing Off.
To read all the documents filed to the Fifth Court of Appeals go to http://search.txcourts.gov/Case.aspx?cn=05-18-00700-CV&coa=coa05