ALESHIRELAW A PROFESSIONAL CORPORATION 700 LAVACA STREET, SUITE 1400 AUSTIN, TEXAS 78701 Bill Aleshire Bill@AleshireLAW.com 512 320-9155 (call) 512 320-9156 (fax) _______________________________________________________ August 9, 2018 VIA EMAIL: Anne.Morgan@austintexas.gov Anne Morgan, City Attorney City of Austin, Texas 301 W. 2nd Street Austin, Texas 78701 RE: Efficiency Audit Proposition K: Courtesy Notice of Anticipated Litigation to Block Deceptive Ballot Language (Council Agenda Items 112, 113). Dear Ms. Morgan, I have been retained by Ed English and others to immediately seek mandamus relief from the 3 Court of Appeals (and any necessary district court relief) if the Council adopts the ballot language for Proposition K that your attached August 8th memo describes as “currently included in the ordinance” calling the November election. If Council accepts your recommended prejudicial language (in lieu of the neutral language of your Option 1), litigation is necessary to protect Austin citizens’ right to petition and election without interference by the Mayor and Council. rd You will recall that this Mayor and a Council majority unlawfully refused to place the CodeNEXT Proposition on the ballot at all and are now under court order to do so (Proposition J). Apparently, the Mayor and Council, having been thwarted in that tactic to deny petitioning rights to Austin citizens, are now attempting to use the wording of the ballot proposition as an opposition political advertisement, instead of fairly presenting the proposed ordinance to the voters. Your August 8th memo will be a fine exhibit for us in court because it demonstrates that you know how to word the ballot in a neutral and fair way, Option 1, versus manipulating the ballot to prejudicially and misleadingly encourage voters to vote against the Efficiency Audit proposition. Here is what you provided as options for the ballot under Agenda Item 113: Option 1 (A neutral presentation of the petitioned ordinance): Letter to City Attorney Page 1 of 3 “Shall a city ordinance be adopted requiring a comprehensive, independent, thirdparty efficiency audit of all city operations and budget.” Your Recommended Prejudicial Language: “In addition to having an internal City Auditor and independent external auditor, shall the City Code be amended to require an efficiency study of the City’s operational and fiscal performance performed by a third-party consultant, at an estimated cost of $4 million, the funding of which will require a reduction in services or an increase in the tax rate?” Option 2: “Shall a city ordinance be adopted requiring a comprehensive, independent, third-party efficiency audit of all city operations and budget, possibly costing the city $1,000,000 to $4,000,000, and potentially identifying $160,000,000 million or more in annual savings opportunities for the city?” Ironically, the staff memo for agenda item No. 112, objectively presents the nature and purpose of the Efficiency Audit ordinance and says “There is no fiscal impact” to the ordinance that your proposed ballot language claims will cost $4 million. (Agenda Item 112: “Adopt a citizen-initiated ordinance, supported by a petition certified sufficient on August 3, 2018, to amend the City Code, relating to a city efficiency study of the City's operational and fiscal performance.”). So, under Agenda Item 112, the record shows that if the Council adopts the Efficiency Audit ordinance, without an election, it would have no fiscal impact, but under your proposed ballot language under Agenda Item 113, the voters would be told, erroneously, that the ordinance would cost $4 million! Austin City Charter, art. IV, section 5 says, “The ballot used in voting on an initiated or referred ordinance shall state the caption of the ordinance and below the caption shall set forth on separate lines the words, “For the Ordinance” and “Against the Ordinance.” The Texas Supreme Court has referred to such obligation for placing citizen-initiated ordinances on the ballot, properly worded, as a “ministerial duty” to “substantially submit the measure with definiteness and certainty by identifying the measure’s chief features and character and purpose.” In re Williams, 470 S.W.3d 819 (Tex. 2015). Your Option 1 on Agenda Item 113 is the only ballot version that meets this standard. Your other versions are obviously political, obviously prejudiced, and misleading by the addition of language that is either unsupported by facts and irrelevant material, going far beyond just presenting a caption of the proposed ordinance. The City cannot prove the proposition will cost the City $4 million or have the net effect of requiring “a reduction in services or an increase in the tax rate.” The fact that the City has a City Auditor is irrelevant. It would be reasonable to assume that the Auditor would not deliberately duplicate the work of an outside efficiency auditor. And the fact that the City has an “independent external auditor” to certify the City’s annual financial report does not mean that external auditor conducts any work like what the Efficiency Audit ordinance calls for. Letter to City Attorney Page 2 of 3 As a result of the short timing for getting the November ballot finalized, it would behoove the Mayor and Council to adopt your Option 1 language and avoid the chaos of trying to get the language corrected via a court order and another meeting of the Council before the August 20th deadline. Adoption of Option 1 might also indicate that this Mayor and Council majority are finally willing to show some respect they have so far lacked for Austinites’ petitioning rights. If Council does not adopt Option 1, I trust your office will cooperate in expeditious litigation of the matter. CONCLUSION As I’ve said to you before, I do not relish seeing my City of Austin hauled into court for arrogant abuse of power and failure to conform to standards of good government. I hope you will take this information under serious consideration and encourage the Council to not require another lawsuit to protect the people of Austin from its government. ALESHIRELAW, PC ______________________________ Bill Aleshire Letter to City Attorney Page 3 of 3