You might call it the Texas Legislature's "RoseAnn Rosannadanna Act," after the Saturday Night Live character who was forever seeking forgiveness for her misunderstandings.
Every two years since 1934, Texas municipal officials have been able to sigh a heartfelt "never mind" as legislators enact a law that basically legalizes all their misinterpretations, errors, oversights and questionable annexations since the previous Legislature's slate cleaning -- providing there is no litigation already filed or court judgments resulting from the screwups.
The legislation can basically legalize little illegalities -- such as a city council's posting notice of a public meeting for 12 days, instead of the required 14 -- and not-so-little illegalities -- such as a closed-door meeting by an elected board in violation of the state's Open Meetings Act.
This year, the odd couple sponsors of the legislation, Senator Rodney Ellis of Houston, a liberal Democrat, and Representative Fred Hill of Richardson, a conservative Republican, are having to stretch a bit further to field a muff by Houston legal giant Vinson & Elkins and its client, the city of Galveston.
Galveston's V&E attorneys had advised the city to schedule a $4 million bond and sales tax election on Tuesday, December 6. A minuscule turnout of voters apparently caught the Christmas spirit of giving and, by a 1,698 to 1,179 margin, authorized an increase in the city's sales tax to fund bonds for sewer improvements. Then, as the city prepared to sell the bonds, officials discovered that December 6 was not one of the five dates for such elections prescribed by state law.
A bond election would have been permissible on December 6, but a sales tax election was forbidden on that date, according to a ruling by the Texas Attorney General Dan Morales' office. The state comptroller's office also has issued a preliminary opinion questioning the election's legality.
"Right before the election [the V&E attorneys] had done some preliminary inquiries through the attorney general's office, and [the A.G.] said, 'No, you guys are having a sales tax election, and that's the wrong date,'" recalls Bob Richardson, Galveston's finance director.
But the city went forward with the election after being assured by V&E that the date was kosher, says Richardson, and now the bonds can't be sold. "So that's where we are," he explains, "waiting for the Legislature to pass their validating bill."
Without the validating legislation, Galveston would have to reschedule the election and face possible higher interest rates on its bonds. But at least one state representative, Houston's Kevin Bailey, intends to make a painless exit through the Legislature difficult.
Bailey, who's most concerned with the bill's slate cleaning on annexations (he's pushing to ensure the city of Houston provides services to its annexed areas), says V&E lobbyists, worried that Galveston may file suit against the law firm if the mistake costs the city money, are trying to finesse the bill through without much scrutiny. Richardson says he's heard talk of a possible lawsuit but doesn't know if it's serious. Galveston Mayor Barbara Crews and City Attorney Barbara Roberts were not available for comment.
Vinson & Elkins' Bob Randolph, who advised Galveston, says there's plenty of legal support for his interpretation that the election was a bond vote that did not have to be held on the state-mandated date. And he points out a further complication: if the scheduled election was in fact a sales tax election, then it could not be rescheduled for a minimum of a year. Of course, that raises the question of why the election wasn't originally scheduled on a state-approved date in January. "What we did was we drew up a proposition and sent it down to them," says Randolph, distancing himself from that decision. "We really didn't call the election."
But Richardson says his city was just following V&E's advice. "They knew exactly when the election was held and what it was for. Unless your attorney raises a hand and says, 'Hey, this is the wrong date,' we assumed things were okay."
Bailey's more pointed: he claims V&E "just screwed up completely" and "apparently is pretty scared about this deal."
"They're sitting out in the audience [at the committee hearings] trying to lay real low and not saying anything," Bailey says. "One of the Galveston reps said that Joe Bill Watkins, the lobbyist for V&E, was bragging he was representing Galveston in this deal pro bono. She laughed and said, 'I bet the hell you are!'"
Bailey is one of a group of six Democrats on the nine-member Urban Affairs Committee who have been battling Hill, the committee chairman, on a variety of issues. They've taken the cleanup bill prisoner, since Hill is its House sponsor.
According to Bailey, several members of the committee want to force V&E representatives to testify before the committee "and embarrass 'em publicly. I think that's probably a good idea."
Aside from the Galveston situation, Bailey wonders why the Legislature should issue a "get home free" card to every municipality that commits illegal acts. Small-town governments without much media scrutiny routinely violate open meeting laws and annexation requirements, and then expect to evade even a hand slap, he says.
"It's like a pardon for a criminal, in a sense," says Bailey. "If we're going to make these laws ... we should expect cities to follow those laws and not bail 'em out every two years." He points out that state and county governments and school districts don't receive periodic forgiveness from the Legislature.
When the bill is eventually released from the committee, Bailey plans to add a few amendments. "One would say that any annexations that were done by any city in Texas where they did not provide a service plan or services as required by law, they would not be validated," says Bailey. His second amendment would exempt from forgiveness "any ordinances or actions taken by city government in violation of the open meetings law."
If you like this story, consider signing up for our email newsletters.
SHOW ME HOW
Bailey is equally unsympathetic to the notion of validating elections held on a wrong date. He figures the current legislation is as much for the benefit of Vinson & Elkins as it is for Galveston.
"I can't believe they have all these high-powered lawyers, and they can't figure out what the five uniform election dates are," he snorts.
V&E's Randolph doesn't seem especially disturbed by the threat of trouble from Galveston or Bailey.
"We've got big, broad shoulders if that's what they want to do," he says. "We deny the allegation and defy the alligators.