By Bill Oakey – reptined November 2, 2017
Should it take action by our district attorney or a nasty, expensive lawsuit to entice our grassroots City Council to obey the City Charter? After all 11 of them swore to uphold the law when they took their oath of office, shouldn’t we be able to trust them to keep that oath?
This week the NAACP and the citizens’ group, Community Not Commodity filed a complaint with the District Attorney, asking her to investigate the City Council’s failure to appoint members of the Planning Commission in accordance with the requirements of the City Charter. Today the Planning Commission is heavily stacked with special interests who have ties to developers and real estate. They comprise seven of the thirteen seats, which is a majority.
Article X, Section 2 of the City Charter requires that two-thirds of the Planning Commission “shall be lay members not directly or indirectly connected with real estate and land development.” That language was part of a Charter amendment ballot proposition approved by the voters in 1994. Here we are in 2017, and there’s no telling how many Planning Commission decisions have been made over the past 23 years by unlawfully constituted commissions.
Speaking of elections, several members of the City Council will be up for reelection next year. Some of them are already gearing up for their campaigns. Right now they have a couple of choices. They could fight against the City Charter with the District Attorney or later on in a courtroom. Or, they could avoid that whole mess by simply calling District Attorney, Margaret Moore at (512) 854-9400 and telling her that they will abide by the City Charter and change the membership of the Planning Commission.
Does the City Have Lawyers Lurking in the Shadows?
To most of you reading this, the language in the Charter probably seems pretty clear. What part of the two-thirds membership requirement is there not to understand? What part of the spirit of that requirement is there not to understand? Well, back in the 90’s when that Charter Amendment was adopted, Bill Clinton was President. One of his many talents was his lawyer-ly ability to parse words. Wasn’t he the one who argued that “It depends upon what the meaning of the word “is” is?” (Here it “is” on YouTube).
I suppose the City could have a gang of lawyers, lying awake at night trying to parse their way out of our voter-approved City Charter amendment. I looked it over carefully, and the word “is” does not appear in that section. But I found another word that could be just as vexing, if not more so. Maybe those lawyers have stumbled upon it too. If so, let’s try to head them off at the pass.
Notice the word “shall” in the all-important phrase, “shall be lay members not directly or indirectly connected with real estate and land development.” Could “shall” be the word being groomed for creative parsing? If that’s the case folks, then I have some pretty bad news. But let’s take the good news first. Here is the definition of “shall” in the Merriam-Webster dictionary:
2b. —used in laws, regulations, or directives to express what is mandatory
That looks pretty solid. But are you ready for the bad news? In lawyer-land, words can be stretched, bent, twisted and parsed. So in the not-too-distant future, our tax dollars could be paying for a courtroom drama centered around the planning commission composition contention. And, yes, it could all come down to that terribly intimidating and confusing word, “shall.” Check out this definition from Black’s Law Dictionary, 2nd Edition:
As used in statutes and similar instruments, this word is generally imperative or mandatory; but it may be construed as merely permissive or directory, (as equivalent to “may,”) to carry out the legislative intention and In cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. Also, as against the government, “shall” is to be construed as “may,” unless a contrary intention is manifest. See Wheeler v. Chicago, 24 111. 105, 76 Am. Dec. 736; People v. Chicago Sanitary Dist., 184 111. 597, 56 N. E. 9.”.:;: Madison v. Daley (C. C.) 58 Fed. 753; Cairo & F. R. Co. v. Ilecht, 95 U. S. 170, 24 L. Ed. 423. SHAM PLEA. See PLEA. SHARE 1082 SHERIFF
Here’s What You Can Do to Stop the Foolishness and Support the Voter-Approved Charter Amendment
You can send an email to the Mayor and all of the City Council members with a single click. Just click here. Ask them to settle the case now, accept the literal word and the spirit of the City Charter and appoint some new and appropriate members to the Planning Commission.
Musical Accompaniment for This Blog Piece:
- “We Shall Overcome” – Mahalia Jackson
- “Is You Is Or Is You Ain’t My Baby” – Louis Jordan or Dinah Washington
- “I Fought the Law” – The Bobby Fuller Four or The Crickets (without Buddy Holly)
- “Bend Me, Shape Me” – The American Breed
- “Twistin’ the Night Away” – Sam Cooke
- “Words” – The Bee Gees
From IndyAustin: In case you missed it, make sure you read the latest Statesman expose on how the “influential Austin land use commission violates the city’s charter, is illegal and should be reconstituted or else face possible litigation.”