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HomeMy WebLinkAboutPO 6490: CHANGES TO APPROVAL OF THE AGENDA interoffice MEMORANDUM To: Mayor, City Council, and City Manager From: Valecia R. Tizeno, City Attorney Date: September 24, 2015 Subject: Ordinance No. 15-16 as it pertains to approval of the agenda. I have been asked to review issues concerning Ordinance No. 15-16, adding Section 2-73 (a) (2) to the Code of Ordinances, as it pertains to approval of the agenda. The current ordinance states: *2-73(a) (2) Approval of the Agenda Immediately following roll call, the City Council will approve the order of business that will be considered as presented on the published agenda. This provision is not an opportunity to review items and add new ones. This item is not debatable and requires a majority vote of the City Councilmembers present to approve the agenda. After the agenda has been approved, a 2/3 vote is required to change the agenda. Process for removal: Before each posted meeting and immediately after a quorum is established, the council shall approve the agenda. No item may be added to the agenda. During the approval process, the presiding officer shall ask Councilmembers if they wish to remove items from the agenda. Councilmembers who wish to have items removed from the agenda shall identify those items to the presiding officer. The presiding officer will ask the City Manager if there are reasons why any item shall not be removed. Where a valid reason exists for the item to remain, that item shall not be subject to a vote to remove. The presiding officer shall call for a vote of the Councilmembers without debate. Various concerns have been raised by Councilmembers regarding how the current ordinance is impacted by the Texas Open Meetings Act ("TOMA") and the authority of a City Councilmember to place an item on the agenda pursuant to 2-31 of the Code of Ordinances. I have been asked to review if Ordinance 15-16 precludes a Councilmember from having his or her ideas or proposals considered by the City Council. I have also received notification from the following Councilmembers requesting that an item be placed on the City Council agenda to rescind the current ordinance: Councilmembers Scott, Mosley, Lewis, Swati, and Mayor Prince. Requested Legal Analysis: The Texas Open Meetings Act ("TOMA") authorizes a City Council to set the terms of its meetings with broad discretion. TOMA does not address any details with regard to agenda preparation. It only requires that a governmental body give the public advance notice of the subjects it will consider in an open meeting or a closed executive session. Therefore, a 72 hour posting is required. As a home rule municipality, TOMA does not provide any details with regard to the content of a City agenda. According to the Attorney General, a city council has full power to establish its own rules of procedure, as long as they are not inconsistent with the constitution, legislation, or city charter provisions. Therefore, there are two City Ordinances (2-31 and 2-75) that need to be considered. Section 2-31 of the Code of Ordinances states "one councilmember may place up to two items on the agenda. In the event three or more items are requested to be placed on the agenda, three councilmembers must make the request." This provision gives Councilmembers clear authority to place items on the agenda. Section 2-75 of the City of Port Arthur's Code of Ordinances states that "Robert's Rules of Order, newly revised, shall prevail except where otherwise provided." The language that is set forth in Ordinance No. 15-16 is also set forth in Robert's Rules of Order. Roberts Rules states that the agenda approval helps to plan or establish the order of business to be considered. The training manual for Robert's Rules specifically asserts that this provision should only be utilized for housekeeping or organizational purposes. The training manual further states that this provision should not be utilized to tie the hands of the assembly or prohibit members from bringing up business. Therefore, Ordinance No. 15-16 is allowable under Robert's Rules of Order. However, it should not be utilized to limit the authority that a Councilmember has pursuant to 2-73 of the Code of Ordinances. Based upon the concerns, I would suggest that it be amended, so that the Councilmember or Councilmembers that placed the item on the agenda pursuant to 2-73, will have an opportunity to be heard. The following language can be considered: Process for removal: Before each posted meeting and immediately after a quorum is established, the council shall approve the agenda. No item may be added to the agenda. During the approval process, the presiding officer shall ask Councilmembers if they wish to remove items from the agenda. Councilmembers who wish to have items removed from the agenda shall identify those items to the presiding officer. The presiding officer will ask the City Manager individual that placed the item on the agenda pursuant to Section 2-31, to explain the purpose of the item and the reasons that they object to the removal of the item if there are reasons why any item shall not be tkomtweigb Where a valid reason exists for the item to remain, that item shall not be subject to a vote to remove. The presiding officer shall call for a vote of the Councilmembers without debate. Based upon the above-referenced analysis, I recommend that Ordinance No. 15-16, be amended to give Councilmembers the ability to be heard on items requested. Otherwise, I have no objection to the deletion of the provision, based upon the broad discretion given to home rule municipalities to determine their agenda setting process under the Texas Open Meetings Act. P.O. No. 6490 09/22/15 gt ORDINANCE NO. AN ORDINANCE AMENDING SECTION 2 OF THE CODE OF ORDINANCES BY DELETING SECTION 2-73 (A) (2) AS IT PERTAINS TO APPROVAL OF THE AGENDA WHEREAS, pursuant to Ordinance 15-16, the City Council approved a provision on its agenda for approval of the agenda; and WHEREAS, it has been requested that the City Council of the City of Port Arthur reconsider or rescind this provision; WHEREAS, it has been requested that Section 2 of the Code of Ordinances be amended by deleting Section 2-73 (a) (2) as it pertains to approval of the agenda. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS: Section 1. That the facts and opinions in the preamble are true and correct . Section 2 . That the Code of Ordinances, City of Port Arthur, Texas, is hereby amended by deleting Section 2-73 (a) (2) . Section 3 . That a copy of the caption of this Ordinance be spread upon the Minutes of the City Council . Section 4 . That the ordinance shall be effective immediately. s.po6490 READ, ADOPTED AND APPROVED on this day of A.D. , 2015, at a Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote : AYES : Mayor: Councilmembers : NOES : Deloris "Bobbie" Prince, Mayor ATTEST: Sherri Bellard City Secretary APPROVED AS TO FORM: (See Memo) Valecia R. Tizeno City Attorney APPROVED FOR ADMINISTRATION: Brian McDougal City Manager s.po6456