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2014-06-05

Was city 'hearing' on substandard buildings legal?

By Judith Pannebaker BCC Editor

"When you let a member of the public speak at an unposted meeting, you're entering a very dark gray area."
"No action can be taken at a meeting at which there was not a quorum of city council."
An elected official and a municipal attorney, not associated with the City of Bandera, offered the above opinions with regard to what might have amounted to a "not-so-public" hearing the evening of Wednesday, May 28.
During the hearing, which was not posted, the discussion centered on the repair and rehabilitation of a trio of the municipality's many derelict structures. In addition to the agenda not being posted outside City Hall or on the city's website, neither minutes nor an audio recording of the proceedings are available.
After learning about the meeting, the Courier spoke with City Administrator Lamar Schulz, who explained that certified letters, giving notice of the meeting, had been sent to George Hamilton and John Hamilton, who own property at 1206 Cherry Street; to a trustee for the estate of Della M. Bailey, 1210 Cedar Street; and to the trustee of the estate of Rita Sellers, 315 10th Street. No representative of Bailey attended the hearing.
The buildings owned by the Hamiltons and the two estates were deemed by someone in the city to be substandard.
According to Schulz, all members of city council were informed of the impending hearing, only John Hegemier and Glenn Clark attended, along with Schulz and Director of Public Works Mike Cardenas. Victor Strickland has resigned as city code inspector with Cardenas now apparently fulfilling his inspection duties.
Additionally, the unannounced public hearing was attended by just two members of the public with one, city resident Jodie Sinclair, speaking about the detrimental effects substandard buildings and those in disrepair have on property values throughout the city.
According to Schulz, when Sinclair spoke to him earlier about the problem, he had informed her about the impending hearing. Additionally, during an interview on Thursday, May 29, he said the city ordinance did not require that newspapers - and apparently the general citizenry at large - be notified about the hearing.
In fact, procedures to be followed in these cases is set forth in Article 3.03 - Substandard Buildings, in City of Bandera ordinances. This particular ordinance covers a declaration of nuisance, definitions, notifications, standards for ordering repair or demolition and a public hearing, among other steps to be followed. In short, if a property owner is found to be in violation during a public hearing, he is given 30 days - but not more than 90 days - to repair or demolish the property in question.
Section 3.03.009 of the ordinance states: "After the public hearing (Courier emphasis), if a building is found to be in violation of this article, the city may order that the building be repaired or demolished by the owner within a reasonable time, as established under section 3.03.008."
Because no official records were taken at the meeting, the Courier does not know when the 30-day clock began ticking for the offending property owners. As the municipal attorney consulted by the Courier pointed out, if a quorum of council was not present at the public hearing, no action could have been taken. "On the 31st day, property owners could claim a 'procedural defect' occurred during the meeting and that the resulting action could be considered null and void," he said.
Although Schulz apparently did not consider last week's meeting to be a public one, the 2012 "Texas Open Meetings Act Made Easy," available online from the Office of the Texas Attorney General (OAF) states: "... during a public hearing (Courier emphasis), members of the public must be given a reasonable opportunity to speak. Many statutes that require a public hearing also require that special notice of the hearing be given." The document gave this example: "When a city council is going to have an annexation hearing, it must publish notice of the hearing in a newspaper at some time between 10 and 20 days before the hearing."
Neither the city ordinance nor the Texas Local Government Code offers provisions for private hearings on public matters. Both reference "public hearings" regarding the final disposition of substandard buildings. By definition, public hearings must be open to the public, which seemed not to have happened on Wednesday, May 28.
In addition, Mayor Don Clark should have been familiar with the rules governing public meetings. According to the municipal attorney, all elected officials are required to take online classes in open meetings and open records 90 days after their oaths of office are administered.
On May 15, the Courier did an open records request for documentation that all city council members and the mayor had completed the mandated classes as required by the OAG. It seems Mayor Clark completed his classes on May 16 and May 19 - immediately after the Courier's FOIA request. He has been in office 18 months.
"The mayor should thank the Courier for reminding him of his need for legal compliance regarding completion of his mandated education due to the newspaper's open records request," quipped the municipal attorney consulted by the Courier.
The Courier would like every derelict structure in the city to be addressed, but legal procedures are in place covering governmental actions.
Whether the not-so-public hearing, held May 28, was legal on multiple levels will be determined by attorneys with the Office of the Texas Attorney General.