Case against city of Rusk filed, dismissed

by By Cristin Parker

Update/correction to print version: paperwork concerning the majority vote matter had not been presented to the Cherokee County District Clerk's office as reported in the 7.25.18 issue,so had not been dismissed. The first draft of the paperwork was reviewed by the attorneys involved; Brett Brewer, City Attorney and Sten Langsjoen of Tyler, but not submitted to the District Court at that time. However, the paperwork was filed with the District Clerk's office early Wednesday, July 25, according to Councilman Jan Pate. News writer Cristin Parker and the Cherokeean Herald regret the error.

A petition seeking a declaratory judgement on behalf of the Rusk City Council, concerning the proper interpretation of what constitutes a majority vote, was filed last week, then dismissed, according to city and Cherokee County District Clerk officials.

During a special meeting held July 5, council members unanimously approved to take the city charter before a county district judge to get a ruling on whether a majority of the council votes is three of five or four of six.

“The (initial) petition was drawn up that would allow all five council members and the mayor to sign,” District 5 Councilman Jan Pate, who introduced the option to seek a ruling through district court at the July 5 meeting, explained on Tuesday. “The attorneys involved (Sten Langjoen of Tyler and Rusk City Attorney Brett Brewer of Jacksonville) advised us that the petition could not be filed in court as joint petition. There had to be an issue – which is the three-vote or four-vote majority question -- with a petitioner and a defendant named.”

“So, we (the Council) had to work out how to do that to be fair to all sides. We’re not here to fight, just get a ruling.

“Again, on the advice of our attorney (Langjoen), it was decided that the three new councilmen, myself, Ken Ferrara and Martin Holsome, would present as the petitioners since we agree a vote of three is a majority, and the mayor and Councilmen Ben Middlebrooks and Walter Session, who agree four votes is a majority.”

Pate said Tuesday a second petition has been drawn up and is waiting on signatures of Session and Middlebrooks to be filed.

“This is simply a friendly legal process,” Pate said. “And this is the process it takes to get this matter into district court.”

Rusk Mayor Angela Raiborn said on Tuesday, “We all signed (the first) petition but it was sent back because it wasn’t presented in the right format. We were then advised by our attorney there had to be an actual suit involved. I have received the newest draft, which I’ve forwarded to our attorney (Brewer).”

Officials with the Cherokee County District Clerk’s office confirmed a second petition for judgement had not been filed as of Monday afternoon.

Article III, section 1 of the Rusk City Charter currently states, “(The mayor) may participate in the discussion of all matters coming before the City Council and shall be entitled to cast a vote only in order to break a tie vote of the City Council.”

Article III, section 2 of the Rusk City Charter states, “…all powers of the city of Rusk shall be vested in the City Council consisting of a mayor and five council members… to be known as the “City Council of the City of Rusk.” Article III, section 7 of the Charter sets out the definition of a quorum as such, “A majority of the members of the City Council shall constitute a quorum and the affirmative vote of a majority of the members present shall be required to pass any order of business.”

The city charter was amended in May of 1996 via election to allow the mayor a vote on agenda items. The charter was amended again in an election held in May 2008, to remove the mayor’s vote.
“At the time this (the charter change) came up, the mayor was able to vote,” recalled former longtime District 4 Councilman Don Woodard, who was serving on the Council in 2008. “There was a lot going on internally at the time. To make a long story short, what it all boiled down to was, the Council decided the mayor didn’t need to vote, except for a tie. So, we took it to our voters and the charter was changed.”

City officials have already consulted both acting City Attorney Brewer and other legal representatives with the Texas Municipal League (TML), who agree with the interpretation of the four-vote majority. City officials were also going to seek an opinion from the State Attorney General’s office and had provided the letter to County Attorney Dana Young for submission to the state office earlier this month, but Councilman Pate wanted a more immediate response, since by state law the AG’s office has up to 180 days to answer any query made to it. Sending a letter to the AG’s office has been put on hold at this time.

“I wish we could get the AG’s opinion,” Raiborn said Tuesday, “or call for a charter amendment election and let our citizens vote on it. I would absolutely support that 100 percent.”

Pate said he felt he wanted something more substantial than “just an opinion,” and agreed with Raiborn on bringing the charter to Rusk voters.

“Opinions are only opinions,” he said. “And the mayor and I agree, there are lots of things in the charter that need to be reviewed. Some of those things the Council has the power to address themselves, but the rest – we want to know what our taxpayers think and let them tell us how they want us to correct the charter.”

City records show the Rusk City Council hasn’t had a problem getting a majority vote of four on action items since 2009.

“It never came up,” said former District 1 Councilman Kris Morgan, who was serving on the Council in 2009. “There were very few times we had any dissenting votes and when we did there was never more than one.”

Woodard agreed.

“I don’t recall all that many (voting issues) coming into question,” he said. “Maybe that was just lucky, and we did accomplish things pretty well concerning the budget and other city business. We were more cohesive a group then, too.”

Former District 3 Councilman Don Jones, who was a member of the Council in 2009, graciously declined to comment on the majority vote question on Monday, but did say, “I think we had a good understanding of each other as council members. I’m not saying we never had split votes, but it was rare.”

Raiborn, who’s served as Rusk Mayor for 10 years, said, “Certainly there were issues the Council was divided on. We always talked them out, sometimes over several meetings, to find something everyone could at least live with. Even now, our Council has gotten numerous things done with the vote structured the way it is. Everyone on the Council can reason and negotiate, it can and has happened.”

Raiborn said one decision she’s most proud of having made with the help of various council members includes getting the $6 million Certificate of Obligation passed.

“There was much ongoing discussion about that,” she said. “But ultimately we did get a decision made and that money was used to help expand our library, pave several streets in the city, renovate our baseball and softball fields, water and sewer infrastructure improvements - just a lot of great projects the city needed.”

Excepting a vote made in June 2009, allowing a local convenience store to sell alcohol -- which Mayor Angela Raiborn has stated in open meetings was a mistake -- Rusk City Council has been able to operate under the current charter mandate that establishes a majority of four affirmative votes to pass an agenda item.

“We erred at that time,” Morgan said. “I’ve spoken with the mayor and current councilmen about the possibility of rescinding that variance, because we did err, and right is right, wrong is wrong. Efforts to correct errors should never be a time sensitive issue. It’s never too late to correct errors made.”

Former District 5 Councilman Ted Debbs also declined to comment on Monday. Former Councilman Sam Florian did not return phone messages to the Cherokeean Herald by Tuesday’s press deadline.

The city’s deadline to call a charter amendment election is Aug. 20, and City Manager Jim Dunaway said the matter is included on the Thursday, Aug. 9 council meeting agenda.

In the meantime, city officials are already working on the city budget for the upcoming fiscal year.

“I’m pleased to report we’ve been working with our administration and the city manager, who’ve been able to cut about 9 percent from the proposed budget,” Pate said. “I want to give Jim a big ‘atta boy’ for that, because on top of those cuts, he’s also proposing no new tax increases and no rate increases to our water and sewer rates.

“I feel like we’re working well together on this and are moving in the right direction on this budget.”