Austin Chronicle on Item 40 debate

http://www.austinchronicle.com/gyrobase/Issue/column?oid=oid%3A912880

City Hall Hustle: Call Us Ambiguous

City legal once again yanks council's chain – will they finally yank back?
BY WELLS DUNBAR

Once, the Hustle asked City Attorney David Smith the color of the sky. Six weeks later, we received an opinion from the Texas Attorney General defining the answer as privileged information.
All right, that's a little bit of a stretch – emphasis on little – but currently relevant, as the city attorney's office, and its operations and reporting, are again in the limelight following its opinion on a relatively straightforward City Council resolution last week, which seemed to suggest that council has no business directing city programs.

The action in question, Item 40, directs the city manager to work with the Animal Advisory Commission in developing an implementation plan for the commission's recommendations regarding the Town Lake Animal Center – things like a larger adoption program and low-cost spay/neuter programs. But council discussion hinged on the worry – propagated by our old friends at city legal – that council was conceivably overstepping its powers in giving direction to City Manager Marc Ott, specifically by directing that city staff work with the commission. Bill Spelman drew out the issue, asking Ott if the direction gave him "any heartburn." Ott replied
him "any heartburn." Ott replied that after speaking with the city attorney's office, he had concerns that the resolution "may blur the lines" between "the policymaking responsibilities of council and the manager's responsibilities for the administrative services and management of the organization. ... It's a little ambiguous."
Ambiguity was in the air all week, as city legal had been corresponding with Item 40 sponsor Laura Mor­ri­son. Legal, natch, declined to share its advice with the Hustle without an AG opinion, but Morrison's office forwarded an e-mail from Assistant City Attorney Cary Grace. Sent the day of the meeting, it read: "The under­lying AAC report does not clearly differentiate between policy recommendations and programmatic and personnel issues. For this reason, language requiring an 'implementation plan' blurs the line between council-manager authority."
Back in chambers, discussion centered on the concept of "programmatic" powers to develop and implement programs. Grace told council that pinpointing "what is programmatic versus what is policy is sometimes easy, sometimes not." Deciding which is "less of a legal discussion and more of a policy and administrative discussion." But seconds earlier, Grace seemed to vest those powers solely with Ott, saying "in essence, it depends on how the manager manages as to whether or not he believes a particular directive to be programmatic."
"The word 'programmatic' was problematic," Morrison told me afterward, noting "the word 'program' is not in the city charter, with regard to the city manager." Taking a more bullish approach to council's powers, she points to charter language – that "all powers of the city shall be vested" in council – as supporting her claim it's "absolutely within the council's authority and responsibility" to develop programs. Moreover, she says, "It almost seemed to be suggested by our legal department that it was the city manager's responsibility and authority to make the decision as to ... what was under his authority or the council's authority. I think that that was possibly suggested by some of what was said, and that is a position I would certainly disagree with."
Item 40 passed; as all it does is develop an implementation plan, Mayor Lee Leffingwell voiced the consensus it's "basically a direction to go forward and develop a final product," one that will be further vetted by council. But some on the dais chafed at the discussion they'd just witnessed. "What is going on up here?" Randi Shade asked, saying the debate over the item's direction to Ott was "splitting hairs." And astutely, she wagered "the reason why there is this angst" is because staff and the differing animal constituencies "have not worked as well together as they could in the past." Reached later, Shade could "think of countless examples" where Ott worked with stakeholder groups on issues. And she feared the discussion obfuscated the larger issue of animal welfare.
Mike Martinez was characteristically blunt, saying: "If the city charter doesn't allow us to direct the city manager to sit down and work with people, then we have a serious problem with our charter. It just blows me away. ... It's very simple: the council reserves the right and the authority to direct the city manager to implement programs, to create programs, and even be specific. "I'll be supporting this motion," he concluded, "and if we need to do a charter amendment in a few years, I'll support that too."
By coincidence, the day after the meeting, the city auditor issued a response to a question previously posed by Morrison: How common is Austin's city attorney arrangement, under which the office reports to the city manager (as opposed to, say, the council)? Of the nation's 50 largest cities, only 19 have Austin's council-manager form of government, and of those 19, only three city attorneys – Austin's included – report to the city manager. After last week's constitutional crisis in miniature, those numbers should be on everyone's minds in City Hall.
Deliver your opinion on Twitter: @CityHallHustle.