Travis County Commssioners Court
December 9, 2003
The Closed Caption log for this Commissioners Court agenda item is provided by Travis County Internet Services. Since this file is derived from the Closed Captions created during live cablecasts, there are occasional spelling and grammatical errors. This Closed Caption log is not an official record the Commissioners Court Meeting and cannot be relied on for official purposes. For official records please contact the County Clerk at (512) 854-4722.
Item 5
Now we are down to 5, consider and take appropriate action on the following 5-a is a proposal for chapter 30, Travis County code, joint travis/city of Austin subdivision code for extraterritorial jurisdiction. And 5-b, contract for professional services for management audit of the single office for Travis County/austin subdivision review with deloitte and touche, llp. Do we need to take something easy like b first or do you want to take a first?
>> let's take a first.
>> okay.
>> it's not as bad as it looks. What I handed out is the latest and greatest draft portion of the single code. The first pages are some of the changes that the joint staffs are recommending both to the city council and to the Commissioners court. We've summarized the changes. There were two versions of the single code, one developed by the staff of the city and county and one by the stakeholders. What you have before you is principally the draft of the city and county staff, the original version, with amendments. In the stakeholder version was a -- [ inaudible ]. The version of the staff had a potential for both the city and the county to be making separate determinations. Even with a provision in the local code that had a conflict resolution process. The resolution process literally went up the city side and went up the county side, with no guarantee that there would be a conflict actually resolved. On paper you could still have at the end of the day the city and the county not agreeing. With their version attempted to do is resolve conflict by delegating functional areas either to the city or to the county. So basically one would take responsibility and the other would not have any authority to review that function. Literally giving some authority to one or the other by functional areas. The draft that the city and the county came up with initially had (indiscernible) and waivers. And we could not agree with the resolution conflict process. If there was a variance or waiver request that we then agreed to a matrix that said under the circumstances what are the group that will take the judgment call on the variance or waiver? What we're recommending to you today is to go with the staff's version, but require that the city and the county come to a single determination. That would require not only an amendment to the code, which we are recommending, but also a change to the interlocal agreement. It would say that at the end of the day any conflict presented to an official would have to be resolved, no choice about it. We cannot recommend to the city council and to the Commissioners court any plan that has conflict involved in it because we're mandated under this version and by a change to the interlocal agreement to have that worked out so it's a change from the verltion that was originally presented to the city council and the county court and it also represents a change to the interlocal agreement.
>> is there language in this document --
>> there is language in this draft that accomplishes that change.
>> what page that? -- what page is that?
>> 39-1. Page 16 of 50. It's page 16, line 18.
>> what line is it on?
>> line 18. Section 30-1-93-c.
>> and exercise the duty or power, what does that mean? The managing officials, that's the two of y'all, right, make a single determination -- I'm with you through that -- and exercise the duty or power. What does that part mean?
>> if you look in the code in vary yans sections, -- various sections, it calls on various decisions to be made, how much right-of-way to deserve, how big a lot is, just all of the different standards require decisions to be made. Ultimately leading up to the decision whether to approve or disapprove a plat. And when I read this language that says shall make a single determination, it's talking about all those individual determinations that if you read this entire code, you will find interspersed throughout there. And again, easy example, how much right-of-way to require. All the way from those individual determinations up to the individual one of should this plat be approved or should it be denied? There has to be a single decision on how much right-of-way is required. There has to be a single decision, approve the plat or deny the plat.
>> a single determination necessary to approve or deny the plat. Is that what you mean by an exercise of duty and power?
>> I think that would mean the same thing because ultimately that's the decision, you approve or deny the plat. You can say we need x amount of right-of-way, and if the applicant says I'm not going to give you that right-of-way, the decision then becomes deny the plat. So yes, you could phrase it that way, judge, and I think it means the same thing.
>> in practice --
>> I think it's worded this way to cover not only the ultimate decision of approve or deny, but all those subdecisions that lead you to decide whether to approve or deny. But ultimately the decision it to approve or deny.
>> make a single determination regarding the application for subdivision plat. I think there ought to be simple english following a single determination or I think there ought to be a period. I don't know that this is an exercise -- if we want an exercise the duty and power, it seems to me it ought to be attached to something. Duties and powers set forth in law? Contained in this code?
>> right. I think we can ask the attorneys to add language that completes the sentence so you know what it's referring to. I think mike english is indicating it's previously stated in some other part, but I think you would rather it be clearler if it's not covered there.
>> I assume this will not be covered in a law class at u.t. We're doing this for lay people. We want them to understand.
>> let me clarify for them. Look at subsection b. It says when it title prescribes a duty or power to be exercised by the single office, the consensus of the single office staff shall exercise the duty or power. So what we're talking about are specific things that are allocated to the single office. And there would be, for example, if you look at the bottom of the page there would be an example of that, that last sentence where it says the single office may require an applicant to provide evidence of the applicant's authority to file an application. So there's a power that a single office could exercise. And anywhere where it talks about the single office doing something in this code, that's what they're referring to when they say duty or power.
>> all right. Let me approach it another way. This is simple enough, understandable enough for the stakeholders? Am I the only one that's confused a little bit about it?
>> as a lawyer I say it's simple enough for me. [ laughter ] I don't agree with the way the decision is made, but I do understand it.
>> okay.
>> so in your view what this accomplishes is a way for us to get a final determination even when there is disagreement between city and county staff.
>> that's right. Understand that where we deviate from the stakeholders is in the final determination being made separately by the city or by the county. We retain authority. The county retains authority, the city retains authority. We have not taken that away from either party in the option that we have chose. On the other hand, we do understand the need to have a single determination made by these two parties. It is not fair to have the applicant being bounced back around by different interpretations of the code or however. And so short of giving up authority, we felt that this would require us to come to that single determination.
>> at what time -- is there a time limit so when y'all must come to that determination?
>> there's already statutory time clocks within the law on the approval of the plat. So we are still bound by those provisions in the law.
>> and there are time period inc=-;?dition to those that have been established by this code.
>> well --
>> let me --
>> let me ask this. Now, this has been run by the city very thoroughly, everybody understand how critical and crucial it is for the city's participation in this as far as this language is concerned and everything else. Now, my question is when does this go before -- officially before the city council again for them to look at this? Is there a time line on that?
>> the city council, their last agenda meeting is this Thursday, December 11th.
>> this Thursday.
>> and they have already approved the agreement on first and second reading, and they have it for consideration this week as well. So they will consider this same recommendation on Thursday.
>> this coming Thursday, the 11th.
>> but the staff is in agreement and worked with the county in consideration of the concerns that the stakeholders raised to come up with an alternative or a proposal we felt meets the spirit of what they were telling us a single determination, which we understand but doesn't reduce the city's authority or the county's authority.
>> okay. Go ahead, joe. I didn't mean to cut you off.
>> there's also a portion d in that same section that requires us to designate a staff person to serve as a single point of contact for the applicant. And the thinking behind this is -- I mean, there's probably multiple reviewers. Somebody is going to be over here reviewing for water and wastewater, someone over here for road. There may be conflict between those functional areas. That one person is responsible for clearing the comments, to make sure that there is no conflict. So instead of having to -- for an applicant to come over and talk to wastewater and then be told, well, this is not my problem, go over to the road guy and get him to agree to something else on roads, we have a single person, the staff person's responsible for brokering those conflicts between the reviewers. This is not uncommon that one reviewer will be making a comment specific to a functional area without knowledge of how that might conflict with a review comment from another discipline within the review process. So we're hoping the single contact among the staff understands, hey, we've got two people reviewing for different functions, but they don't understand that these things are in conflict. And rather than having the applicant have to work this out, we take on that responsibility, make sure our staff works it out. Kind of the liaison between the staffs.
>> let me just add also, in the city's new process that we have, one of the things that we've been doing is going out with the team and going to the site visits. And the team includes the inspectors who are at the construction end and includes everybody that -- you know, the multidisciplines that you can't have one person that's going to know all the engineering, water and wastewater and some of the other utilities. And we find that that's reducing a lot of conflicts up front for the new projects that have gone through our new process. And so this goes along with that, that single person working with that team of disciplines to make sure that we are clearing those comments. And those are just some of the things. Another thing that we have incorporated is kind of an aging report on comments because sometimes we get comments out there, and if there's not a response that's holding up the plat or the plat expires, so we have an internal report that we're running to ensure that comments are cleared in a timely manner. And I know a lot of these changes are recent, but they have been implemented and we do have some people who have been going through the new process. We do still have a lag of some of the old projects that have the old way that we were doing things, part of it, so I know that you have to consider that as well. But I wanted to give you some additional information on how we're making sure that happens. More proactively.
>> we think this is the best we can do, I take it?
>> short of dividing the duties by functional area or geographically dividing the responsibilities. What we tried to do is stay true to the interlocal agreement and the original approach that was approved by the city and the county well over a year ago.
>> the lawyers believe this complies with the law?
>> I believe it does.
>> will we know in six months whether this has done the job for us?
>> I think we ought to review it in six months.
>> pardon me? I didn't hear that.
>> I think we should review this again in six months, 12 months. I mean, we're charging off into a single office concept. We ought to look at it and see if it's actually working.
>> anything else from y'all?
>> yes, I do.
>>
>> [one moment, please, for change in captioners]
>>
>> justs second. Let me finish up this particular major change, we will go back to the [indiscernible] near term annexation.
>> you want me to start?
>> what was -- is what was posted sufficient to cover this discussion?
>> well, the real estate stakeholders had requested a change to the joint code. To reflect what's in the interlocal. I believe the recommendation joe and lisa are making to you is in lou of making that change excuse me to the joint code as requested by the stakeholders, they are going to come back with a recommendation to change the interlocal which will be posted next week. The two are tied together because what the real estate stakeholders requested was a change to the code based on the interlocal and joe and lisa's recommendation is photo make that change and they are -- they are explaining the alternative, they are going to come forward with. Certainly not -- you are not posted to act on the interlocal today. I'm not sure if there's any problem with you discussing you it in the context of the code -- discussing it in the context of the code.
>> this is a code issue that we will address by modifying the internext week.
>> yes.
>> and what I wanted to tell you is that in this area we were dealing with the chart had to do with variances, because of the way we wrote the footnote you could interpret it to apply to removing the city's authority for reviewing the water and wastewater design or any of the utilities. Any e.t.j., That was never our intent. That has -- has a more far reaching impact and I would ask the -- ask the staff of the water and wastewater utility and even our fire marshal to come and give you a brief explanation of what the impact of is. But very simply when we have other utilities provide service in the e.t.j., The the city reviews the water and wastewater utilities and the other public utilities to ensure that they are adequate size and flow and pressure so -- so at the time that the city would annex those -- those areas, the utility is available to provide the service and provide the needed fire flow. So if we don't review these utilities, when we get to annexation or interconnects, we will have a problem and that will require retrofit. Which means it will affect the consumer because they would not have adequate protection. We will run -- we have run into this in the past of the also one of the issue that's comes up if the city aren't regulating this this is the type of area that the tceq would regulate. This issue came up previously with them. They say we don't have jurisdiction because the city has rules and they apply in the e.t.j. So clearly kind of the footnote was more far-reaching than we ever intended. If we intended to limit our authority in this way we would have certainly put a paragraph in it, we would have certainly described that in a lot more detail than what's in this interlocal. So I did want you to be well aware of what we are talking about and so that's why I asked cantu our assistant director of water and wastewater and fire chief kevin bomb to give you an idea of what this impacts if we don't make this change and if we don't do this review. If you would like to hear from them, I can just --
>> I would just like to hear some on that because fire flow is a very critical element when someone is bringing in a few subdivision online. Because [indiscernible] our involvement in this. I think that it's pretty important to look at what -- what those subdivisions can look forward to with the -- with these particular modifications and changes.
>> this is an area that the county reviews for it.
>> exactly.
>> I would like to hear a couple of things.
>> there are provisions in our land development code that require that any utilities that are designed and constructed in our e.t.j. Be reviewed for compliance with our design criteria. That speaks to both urban and suburban level protection and -- and the service of both water and wastewater utility. In particular, the concern is the fire flow requirement.
>> right.
>> if the systems are not reviewed to make sure that the fire flow is being delivered necessary for the land use that's being proposed, then we have an issue with being able to protect the citizens against the fire.
>> well, this is basically up front, before anything actually takes place, all of these things will be assessed and looked at before anything happens, especially with new development and all of these other kind of things.
>> yes, sir, we have the authority to review plans for compliance as given to us by tceq and that is done up front.
>> okay. What did you say about the tceq, I'm sorry?
>> the authority to review the plans for compliance with state standards, but also with city standards.
>> okay. That's -- that was a connect that I was trying to get. That connection right there. Okay. Thank you. Good morning, I'm kevin balm, the fire marshal for the city of Austin. The city manager was talking a little bit about the importance of fire flow in terms of public safety. As a preface to my remarks, let me just thank the court for making a decision to -- to put the burn ban in place and to restrict the sale of aerial pyro technic, I wholeheartedly agree with my colleagues that now is the time to do that, I thank you from the city of Austin. My remarks about the fire flow is pretty simple. Disbts that is taken for granted, it is not glamorous and we all assume it to be there. It is essentially the appropriate pressure and size and infrastructure to support fire fighting operations and any development or community within the city. If adequate fire flow is not provided, in other words if we don't have the infrastructure in place to support fire fighting operations to new developments, it could be very dangerous to the public, who is going to reside there, it could also be very dangerous to the firefighters who are going to fight fires there. The danger to the public should seem intuitive. If you don't have the supply of water or the pressure in adequate quantities to fight fires, you can't extinguish fires. What might be a simple house fire would very quickly become a group fire where the entire neighborhood begins to burn because we do not have the water capacity, flow or pressure to fight that fire. The danger to firefighters should also seem intuitive. Firefighters don't arrive at the scene of an emergency and start asking themselves I wonder if there's enough pressure to support fire fighting operations. It's assumed that the pressure and flow is there. We train them that way. We trust the fire marshal to make sure that that pressure is there. We fight fires if we can from the inside outside so we can effect search and rescue operations. I can tell you from personal experience there's nothing more frightening or dangerous than being deep inside a burning structure and having your charged hose lining limp because you don't have adequate pressure. That's what could happen if we don't have infrastructure to support proper fire flow for development in the e.t.j. So that's our concern.
>> do these comments support what --
>> they do support that. We do not intend to preclude or eliminate this review by that footnote in the interlocal agreement and I did want you to know, I know a lot of issue that's come up is dual review and unnecessary review by the city, but this issue is not that, it's an issue that affects public safety and it has a larger impact if the infrastructure is not done, if it's not adequate up front and then also which wasn't added if the -- if it has to be retrofitted it's between two and $12,000 per single family dwelling for the homes and that's spread you the to the taxpayers. But again, that's something that we could avoid up front as part of this review, so I just wanted to make sure that the Commissioners court had information and they were -- they would also be available to the city council so they are aware of why we are requesting just to delete that footnote which essentially would resolve this issue and not change the code to do something that would have unintended consequences. Also there's a letter I have, I can make sure that you get copies of it from the tceq that kind of validates jurisdiction from the [indiscernible], I can -- I just received that this morning.
>> some of the stakeholders I'm told need to leave at about 11:00 15, this is an opportunity to give them -- if in fact they must leave, if they have comments why don't we take those now. Presumably you all be able to to stay a few minutes --
>> I can stay, I have time.
>> okay. Thank you.
>> good morning. My name is rick breed. I'm -- I'm one of the real estate stakeholders who have been working on this here before this -- before this commission before. First of all, let me say that the stakeholders haven't seen the redraft of the chapter 30. Last Friday we received about a two and a half, three-page memo indicating some of the changes that the city was going to -- to make. But it indicated what clauses and in some instances it gave some of the language, but we haven't seen the exact language yet. So it's hard for us to comment exactly on -- on what's being presented here. Some of the points that we want to emphasize once again, our suggestion, which is what we think is in compliance with 1204 has to do with delegating discretionary authority. I think the promise that the city and county staff are putting forward is that there will be a single point of contact, number one, and number two that the managing officials, if a decision has not otherwise been made, make a decision by owe as I think that I understand it, correct me if I'm wrong, it's the date that the plat is going -- that the plan is going to be considered by the public body; is that correct? David or mike? I think that's -- that's the way I read your memo, anyway.
>> yeah.
>> a couple of comments. On the single point of contact, right now, we -- if you are dealing with the city on a subdivision matter, you have a single point of contact. A case manager. About you that case manager does not necessarily know all of the facts and they can't tell you when you call them the status of review on this particular item or that particular item and I don't know if this -- if this single point of contact is intended to be a truly knowledgeable person who is going to have this information at your finger tips. Secondly, I would like to know if this person is going to be a city person, if it's within the near-term annexation or in -- a county person if is outside the near term annexation area or how that responsibility is going to be different feed up. -- dived up, so far we have no facts on that. So those are a couple of concerns that I have on that. Divvied up. If the managing officials have to make a decision not later than the day it goes before the public body, then the applicant's situation where you are going to go before a public body and you don't know until that very day what the solution is, and I think that's unfortunate. I think that -- that part of this process ought to be to provide certainty at earlier points in the game as opposed to at the last minute. I know this is a fail safe to say if nothing else has been resolved by this date they have to. But that's not a lot of comfort when you are going through the process, spending a lot of money on engineers, lawyers, so forth and you don't know until the last minute. We think there continues to be duplicative reviews of items, such as roadway, city is going to look from its perspective, county from it. We think that necessarily is going to result in duplicate review fees. With respect to issues as to the interlocal agreement, we think that the interlocal agreement is once again being ignored or violated. They were supposed -- there was supposed to be a joint study and mutual agreement on fees to reduce duplication of fees and reflect actual costs by October 1st. We are almost at January 1. There's nothing done on that. And at the risk of having the fire marshal accuse me of being pro fire and, you know, all of the other bad things, let me say that our point is not that we are -- we don't want there to be safety. Our point is that we don't necessarily agree with the city's statements about what the law is. For example, the tceq letter and i've talked to assistant city attorney lloyd outside and asked if we could have a meeting to go over some of issues because again we are kind of being hit cold by this. We have just been told there's going to be a change, but we've had no dialogue about it. But I'm not so sure that the tceq statement that the -- defaults to city standards in the e.t.j. Is accurate. Mr. Lloyd and I had a discussion outside about that before the meeting. We just want to be comfortable with that. If that's what the law is, that's what the law is. But at this point we are not certain about that. The city of Austin is not the only utility provider who can make sure that there's adequate flow and pressure for fire safety. There are other utility providers who do that, not only in this area but throughout the state and throughout the country. So we would like to make sure that that issue is being examined properly. Moreover, it's -- the tceq does have regulatory authority over water and wastewater, but what you would be changing from the interlocal agreement also has to do with electric utility. The tceq does not have authority over electric utility, so we would like to have a discussion with city and county staff about that. I think -- I'm going to stop right there and let hank smith address some other issues. But I think that we are at the same place we have been before is that there's certain things that we feel are not being adequately addressed. We think that there are some -- some issues at the last minute that we don't understand why. And we understand that the city council last opportunity to act in this calendar year is this Thursday, but this body has other opportunities and I don't know if y'all are posted for action today, but I think our request would be that you not take action today and give us an opportunity to review the changes and the draft when we can get it and to visit with city and county staff to learn more about what the genesis of these changes are and why -- make sure that -- (emergency broadcast signal, no video or audio) different than what the city adopts, at the very least the city is going to have to come back and agree to the same change at some point.
>> so I know that -- I guess I'm going to have to ask this question again. I'm still looking at this January time line. Does that mean that we -- that the county and the city have not maybe come to a to the agreement on what we are doing here? Would that be a situation that will lead into the nextcal year whereby kind of mandated to do some things by January 1 or [indiscernible]
>> the statute says that you are supposed to arbitrate anything the city and county have yet to agree on. As of January 1st. So as January 1st, you are supposed to at least start the arbitration process and the statute says that you are supposed to appoint the arbitrators within 30 days. Now, if -- if before you are supposed to select the arbitrators or if before the arbitrators meet the disagreement is worked out between the city and the county, and there's no longer the need for arbitration, then I would submit to you basically the arbitration ends so you may not have agreement 100% between city and county on January 1st, but -- but if you start the arbitration process and subsequently resolve whatever the difference is, so that you are in 100% agreement, then there's nothing left to arbitrate. See what I'm saying?
>> I see exactly what you are saying.
>> I would submit to you at that point the need for the arbitration processings away.
>> I'm not saying that that will be the case, but there's a possibility of anything and of course I don't know what the court is going to do on this. But I hear what you are saying and others and I don't know the -- I don't know the full facts on that as far as having a chance to review this. But I guess I'm just trying to bring up the point that there is -- if there is a variance on -- a difference in what we are doing here, what opportunities do we have to bring it to closure. I guess that's the direction that I'm trying to get to. Not saying we are going to stay with that and not go forward. I don't want you to think that's what I am suggesting. I'm not suggesting. I'm just discussing what the other possibilities are if a and b don't come together on this. All right. Thanks.
>> we appreciate that. My name is hank smith, I'm one of the stakeholders have been involved with this several years now it seems like. A couple of items that I would like to talk about. We have said several times, it seems to be I don't know [indiscernible] the opposite, nothing in our draft says the city and county can't both review everything. We have never said that. We have never claimed that, we never wanted that. The city and county can both review everything in everything if they feel it's necessary. Our regulations have taken what I would call a variance process down to the staff level. Right now, opportunity the current draft, a decision gets made, the engineer, land developer, whoever is making the decision, the applicant doesn't think that it's a correct decision his only chance is to ask you for a variance. That variance processings up through a chain of com mapped. It's clearly continuated who has the discretionary authority. If the applicant disagrees with it, he asks for a variance, it's very clear who has the discretionary authority on that variance. What we are asking for is that that be considered at the staff level when we make an application so we don't have to take every decision that's disagreed with through a variance process to get the decision made by whoever had that discretionary authority. Take the authority down to the staff level so they can make their decision when they are doing their review. They can still do it, sit and talk about it. If a staff person has a question, he can call up joe or call up the city equivalent and ask the same question how die handle this? But the decision can get made at a much lower level, we don't have to go through a bunch of steps, spend a bunch of time if we know up front who had the disyes, sirary authority over that decision -- discretionary authority over that decision. Trying to step up the process and make it more efficient. We think that we have durn that the way we have drafted our version. A concern comes up when we talk about a decision will be made before we to go a public body. At the city of Austin when you file a preliminary plan or a final plat the very first action that's taken on that application is a statutory denial. It's scheduled before anything else happens. They deny every application that we make for a preliminary plan or a final plat. You go to the zoning and platting commission every Tuesday, there will be a list of 15 or 20 applications that's totally denied, no one opened it, looked at it, just denied. There's no opportunity to schedule and meet a mandated legislative schedule. It's simply not that you are just denying, you are having to overcome that denial. We can't go before the Commissioners court before we go to the zoning and platting commission, we can't go to the zoning and platting commission before we get all of the commissions involved. There's no time constraint in our version that says when the city or county has to make a decision. It could be six months before they come to an agreement.
>> it is six months. The code is absolutely clear, a decision has to be made in 180 days.
>> being on. Again, we haven't seen the final version, that's --
>> that's current city code we are not changing that.
>> ones we are denied after 180 days that application is thrown out and we have to start a whole new application again.
>> if your application is denied, yeah, you have to start over.
>> that's what I'm saying. The very first thing that happened, the first action that the city takes is to deny the application.
>> that's at 30 days.
>> within 30 days.
>> right. Then you have another 150 days to overcome the denial.
>> right. There's never a point in there where we can automatically go to a board and force a decision. Because we can't get there if we can't get the --
>> well, the decision is forced at 180 days because the way the code reads if you don't meet all of the requirements, at 180 days, and the way this draft is -- reads, if you don't meet all of the requirements in 180 days, the single office makes a decision to deny the application. Now, you can appeal that denial. But we have to go the 180 day, the state said you have to have it approved in 180 days or 150 days sometimes, but we can get hung up where we can appeal a decision and take it somewhere. We could easily on a minor issue be stuck we can appeal it and come before the boards and commissions have a decision on that made. That's a concern that we have.
>> of course you can apply for a variance at any time.
>> at any point in time, that's correct.
>> if you are talking about getting hang up, if the variance is your way out, you don't have to wait the 180 days to apply for a variance.
>> until we get the decision -- the concern that we have is again not seeing the final version, not knowing if we have a position to have a variance.. We are not changing that. That's, you know, that's relief that you've got now that can address the problem that you are talking about today.
>> okay. Staying true to the interlocal. That was something that was brought up today. They want to make sure that we stay true to the interlocal but we are turning around and change the interlocal right now. The interlocal says that by September we are going to have a review -- October 1 we are going to review the fee and make sure that we don't have -- we are not charging a few for duplication of effort between the city and the county. That obviously never happened. I don't know what the plan is to go forward, we are talk about it. But that's something that's not been adhered to in the interlocal, there's nothing in these rules that stops the duplication and review effort, that says that it's going to continue to go on. In fact it's been told to us that they think that it's good. There are parties that they that it's a good thing that we both have double effort and double review. It brings the issues up, you know, closer at one time. But having that is a good thing by some people. In some people's mind, in our mind we are having to pay for that. That's why specifically the fee request was put in the interlocal agreement was to make assure that we weren't paying for that duplicative effort. [indiscernible] one thing about the tceq, they have authority even in the city of Austin, even if I delegate the review authority to the city, the tceq is state-wide, they have review authority over every wastewater system in the state of Texas, every system should be should it submitted -- submitted to the state ... Their regulations do apply. What we are looking for on here before we were talking about utilities is what is the state statute, what is the requirement, what is the governing authority about who has review authority in the e.t.j. We will abide by that, whatever it is. We are not disputing that. We want to make clear we understand what that is. We haven't looked at the issue because up until now that's been something that's been taken off the table. Now it's coming back on so we need time to take a look at that. There are other utilities besides water and wastewater, fire. There's electrical review authority. That's the only other that I'm aware of in the city of Austin that the city of Austin provides. There are projects in the e.t.j. That Austin energy does not provide electric service to. That is done by p.u.c. If we have to go through Austin energy's review process and go through there and get service from pec that's going to be a big problem. Pedernales electric has never done anything like that. Now we are changing the way that we are doing business if we take it to that point for utilities. We need more discussion on exactly what we mean by utilities, just talking water and wastewater, talking electric service, what do we mean by that, what is the actually authority that the city has and if we all agree to abide by that.
>> what's the language between the stakeholders between now and next Tuesday to try to work through some of these issues.
>> can he can certainly -- we certainly set up a meeting. With regard to the footnote and electric utilities, what we were trying to do is maintain the existing authority that the city had before we signed that interlocal. To the extent that we reviewed utilities, electric or not, we can go back and look at that, but we did review the water and wastewater lines and sizes and tceq's letter which I will make sure everybody has a copy of it, I only received it this morning states that. Since we do that review, they don't have a review mechanism set up. We weren't trying to add additional, we were trying to retain the authority that we inadvertently I think it could be interpreted that we said that we were not going to do any more by having that footnote. It's not to make Moore, it's to keep what we had. That review that occurred by the city was not a duplicative review that was being conducted by the county. We are saying we wanted to retain what we have. We can work that out. We can talk with medical about that. But I -- we can talk with people about that. Once we talk about it I don't think there will be a big issue with the exception that if you disagree with what we are doing in that.
>> I think we are down to really three issues, who has discretionary authority, the fee issue, utility issue. Which I agree I think it's a matter we need to sit down and figure out what the state authority is and what's going on now, and we are not trying to take away any authority that the state has given the city or county.
>> > what standards of review.
>> has the utilities issue been on the table all the time? No. The interlocal agreement says the city would only review for those that they have the authority to provide the service. That is something they wanting to change this Thursday so it's a -- something that's being changed right now.
>> it's something that the city did before we had the interlocal and throughout the time that we were negotiating the interlocal. I think the stay city has been continuing to do. Just when we looked at, when the stakeholders looked at the code and interlocal, they said change the code to reflect this. Then we said no we didn't mean it to reduce or let me that it that authority that we already have today or we thought that we still had today. In my estimation, it wasn't an attempt to make it larger or take it away --
>> this can be worked through appropriately I think as we sit here and talk this.
>> seemed to me we ought to try to do that. That way [indiscernible] my view is we ought to adopt by the deadline imposed by law whatever we can. We have agreed to work on other issues, we ought to be able to identify them. Some of these, though, we depend on specific wording. And if we need to [indiscernible] that. Then I say let's work on it between now and next Tuesday.
>> actually between now and Thursday, which is tomorrow. The city council meets for the last time Thursday, so --
>> I'm assuming we won't be able to get all of this done by Thursday. One thing is that two members of the court will be out of state on county business beginning tomorrow. I think this is something [indiscernible] needs to see. My view is that if the city council needs to take additional action, even if it's after January, then we ask them to take it. But as of the -- is the deadline January 1.
>> uh-huh.
>> as of January 1, we ought to get in place whatever we can.
>> yeah.
>> that's where we are, whether we like it or not.
>> I understand.
>> the fee duplication there's no way for us to finish that by January 1. But I think we ought to finish it as best we can. We working on the scope of work, how we collaborate with the city of Austin to try to get that done. I don't -- it's hard for me to think that the -- that the other major counties throughout the state of Texas will meet the January 1 deadline, one. Two, though, is that I think that they ought to be in good faith working toward meeting it, same as we, if we don't meet it, then I say put in place what we have and keep working. I mean, be the situation with the fee duplications whether you like it or not.
>> that's true, judge.
>> what is the liability, tom? I don't know why the legislature -- if you don't want to do anything, if you don't want to comply with 1405 another or 1204, what does January 1 mean to anybody? I mean this is a joke. I guess we, you know, we continue. I mean it's not like the world blows up January 1. But my imosh, I mean, you know, I mean the intent, everybody knows what we have been trying to do, but I agree, judge, it's like -- like let's do what we can do I think the stakeholders are fully aware that if there are people that don't want to do things regardless of whether it's state law or not, who cares who does it? I mean, it's -- I guess the legislature at some point in time will find, you know, a bigger whip than what they have. But I mean just because they have sat out and black and white and say this is law, you guys comply with it. We will comply with it if we want. January 1 comes we don't, what do you do with us? Do you declare we are not a city anymore? Declare that Travis County doesn't economist anymore? I mean, you know, I'm frustrated by this, I'm frustrated more because it's taken so darn much time of our staff not to mention what it's taken from you all all's. But the attitude it you bow your next say this is all we are going to do, this is sit, then -- then I guess somebody else is going to tell us what happens after that. Because there -- there obviously are some things that -- that will not happen, January 1, 2004, January 1, 2020. I mean, there are just -- I mean, you were at a spot where you all aren't going to give, we don't -- I mean the stakeholders aren't happy. So -- so what happens? You go back to 2005 and you spend a katrillion dollars on lobbyists, I think the legislature will eventually say why pass a law, can't get anybody to comply with it. But hey if staff is willing to continue on, I just know that there are lots of things pressing in the county that -- that our t.n.r. Department, especially, not to mention legal, the amount of time that its, I mean, I hope you're getting paid for what you are doing. Because this is absolutely absurd.
>> we will send the county our bill. [laughter]
>> this is not the time to send the county any bill.
>> any other comments from y'all, though.
>> no.
>> mr. Savio is here.
>> judge in the interest of time I'm not going to -- thank you.
>> can we ask you all to try to meet with them between now and next Tuesday? Council is taking --
>> we will try to meet with them tomorrow. I will clear my schedule to meet with stakeholders tomorrow. When we get to council at least we have discussed through some of these issues and hopefully we have narrowed them down. I think on the single determination there's just a different point of view of how you accomplish that. I mean I don't know that we will come to a decision on that. On the fees, the city staff, our finance director, our corporate audit person has been working with the county as have i. I think that we can come up with something that is agreeable. I don't know what consensus we will have on it. On the utility issue, I think that's going to be, we are just trying to retain what we already have. On those three issues that's what I see.
>> it will help us to get for the Tuesday discussion sort of a written description of areas of disagreement and areas of agreement. I mean, whether we ought to know before Tuesday come to in basically and [indiscernible] where there is disagreement that -- we deserve an opportunity to at least think about it a little bit before the Tuesday meeting.
>> yeah.
>> and we are getting to the point where whether we like it or we need to start taking final action. If the council takes final action Thursday, then we to know what we need to act on after the first of the year. But as far as I know the Commissioners court will meet the 9th, 16th, the [indiscernible] anything further on a?
>> judge? I'm sorry, I said that I was not going to talk. But I did want to make one clarification. I handed out a memo that had a summary of the stakeholders concerns. It's pointed out to me that I -- not may have. I did overstate one item on cost. I said had doubled the legal fee, doubled the engineering fees. That's not precisely correct. It's double engineering and legal fees relative to negotiating between the city and the county. And so it's just that phase, we will provide clarification, get that back out to you tomorrow. One of the things -- [multiple voices] I'm sorry.
>> you are going to make the corrections?
>> I will make the corrections and get a revised version to you out tomorrow. I will deliver that to your office tomorrow.
>> thank you.
>> again I apologize for the overstatement.
>> all right.
>> judge one of the things that you asked the legal staff was one of the things that I was hoping the court would reflect on between now and when we adopt this is does this actually meet state law. The first paragraph of the memo says no it doesn't. That there's still -- you saw it today when there was discussion about both the city and county reviewing. And in the past. What -- one of the examples that we have used is -- was before the legislature, an instance where there was a street, out in the middle of nowhere, not going to be annexed, no additional development. The county said we don't want that. I mean, why would we want to have to go out and maintain a stubbed out street that doesn't go anywhere. We would prefer that you not put that in. It's just the kind of example where you have two individuals under the outlined under the ordinance is going to continue and has built in conflict. And so that was the reason for the stakeholder proposal for the alternative. Again, there can be a cover put on it, it called called the single office, but it's still two reviews, two fees, two processes, thank you.
>> thank.
>> b? A, b? No, not --
>> 5 b.
>> no.
>> management audit [indiscernible]
>> we had requested the financial [indiscernible] of the stakeholders in the fee study. The home builders agreed to kick in the $25,000 with conditions, the real estate council said that they would not like to participate in the study. My recommendation to you at this point would be for the -- for the city and the county to proceed with the study. I believe the county auditor has suggested that she could kick in an extra 25,000. T.n.r. Would be willing to kick in another 25,000. And another 25,000 from the general fund. Basically get the county cash contribution up to about 175,000. But then rely on the -- all of the rest of this for in kind services from the city of Austin. And have that detailed scoped in the deloitte touche proposal so we know exactly what to expect in terms of in-kind services from the city of Austin. And make this a joint city/county study. And I say this for many reasons. I don't think it's worth our time and effort to do this audit unless we have the cooperation of the city in doing that. They have told us in several forum that's they are willing to participate in the study although they do not have money to financially participate. They have already dedicated a good amount of staff resources to do this internally. If you take that on face value, deloitte should be able to rely on that staff work from their. I would suggest that we have deloitte rescope their proposal. To do the study in two phases. The first phase would be to review the county processes and also to review what work in progress has already -- is already underway at the city deloitte doesn't know that. They are operating in a closet. They don't know because they haven't seen. I would say let's pay them to go see. And from that come back and say, okay, we have now seen city's effort. We know the data source is, we know how good the information is, we know how good the staff work is. And how much deloitte can rely on that to make their independent evaluation. At the same time looking at the county processes. At that point they would come back to the county and see with an interim report before we go into any value judgments on what changes ought to take place in these processes or what type of fee should emanate from that. First we should decide whether or not there are grounds to make a determination, in the interim report we find yes there is good grounds to go on to the second phase, if we find that, we do that with the intent of having a recommendation on duplication of effort as envisioned under the single office. As envisioned under this code. And also the fee that -- that is derived from that type of review. I'm speaking just as a recommendation right now. So -- so to get this off dead center. I would not at this point rely on any outside contribution from the stakeholders, I would say what's more important is for the city and the county to be fully engaged in this audit. What -- the good folks from the city of Austin [indiscernible] evaluation of fees in the process that's have gone through to get those fees.
>> do you know whether or not if -- -- whether or not this city council agenda will have some of the things that you spoke on, especially the in kind contribution of participation levels that -- that it's imperative. We have to have this involved in the study. Is that part of the language that will be suggested? In their -- can you address that question for me, to make sure that it happens, it's very important.
>> actually, in the operations, the city manager's office has responsibility for that and we already have that commitment from the city manager. And we have staff -- we have assigned staff. For example, what we were talking about in terms of the process. The flow of processes and detailed step, we have I think a four or five person team that right now they have been edge gauged in mapping out -- engaged in mapping out our processes, all of those details, those things can be done through the outside auditor without paying for that service from deloitte and touche. There might be an opportunity also, joe and I talked about this previously, in some of the mapping work that is being done on the county side, maybe the staff we have assigned can help with that as well because they are working through that process. We have county staff that's on that team that's working with them.
>> so that's a directive that basically can come from the city manager and [indiscernible] city council.
>> because right now we don't have an appropriation for additional funds because of our budget situation. So the staff is there and that staff has really been identified to work on this issue.
>> okay. Thank you.
>> joe, I think that it's interesting that the city doesn't have the money to get involved in this when miraculuosly there has been money found on water issues be it wal-mart or whatever. I believe your terminology is fully engaged. That means spending money. Why don't we take, obviously some of this stuff is going to go to binding arbitration, if one of the things that we want to go to binding, the key here is binding, I mean, the city needs to participation in this. I don't know why we are running around here trying to get $25,000 from the auditor, $25,000 from you, $25,000 from the salvation army or whoever wants to give us $25,000. I mean, we shouldn't be spending -- it should be on our backs -- it shouldn't be on our backs to do this study. We know whatever we find out of this thing, the city is probably going to go we are not part of the deal, we are not [indiscernible] on the numbers. Spearnly if -- especially if it talks about what we really think what this deal is about is fees. If it's about fees and the city has made it clear from the beginning that they don't want to have to deal with their fee structure. And I understand that. I mean it's revenue for them. They need revenue. But that doesn't -- that shouldn't put it on the backs of the county to do this. So I don't -- I don't understand why we are trying to find a way to do it ourselves. This is a huge part of this deal, we are going to go off, we are anticipating going off and finding the money most of the money, the $100 thousand from us, now we are up to another $50,000 which is really coming out of the county. Um I just -- I don't -- I just don't think that it's something that we ought to be doing. I mean, there's no question in the legislature's mind when they come back in and not having what's going on as to what we have gone through with the -- with trying to comply with the intent of 1204. I mean all that we have to do is review these sessions. I mean because we are -- you know, we have signed off, we are really trying to find a way to do this. , you know, started at 100, now we are up to 200. Now we are going to try to find something and get it for 175. So -- so I -- I mean I'm just not supportive of it.
>>
>> [one moment please for change in captioners]
>>
>> I can only speak to issues of auditing, not your policy issues, but if in fact you want this independent done, a study done independently, then an independent firm needs to have access to the stats and have an the facts. An in kind conclusion is not the city gives them their version of the data and we give them our version of the data and we put those together. The audit is facts are there, the auditors go in and they verify them. They look at the city's records and our records. Where you make them more efficient is you find out what they need. The assistant city manager said they've already done a process review. I think the first thing you do is get that and give it to deloitte and see what they think now that they see that, and then they can scope probably how much time it's going to take to audit that. But if you -- if what we're suggesting is we do three-quarters of it independently and then the city just gives us data, that is not going to be independent and I predict you're exactly right, Commissioner, and the stakeholders will not find that's a viable independent audit. So if you want an independent --
>> I'm suggesting that we do the independent audit on the full, but I know that's got to be paid for and I thought that's why we were trying to increase the 100,000. We did go to the stakeholders and ask them to help. And for their own reasons, the real estate council said no, home builders said yes, but they did have some serious conditions. Right?
>> yes.
>> your religious today is basically -- your recommendation today is basically our response should be thanks, but no thanks to the home builders.
>> at this point.
>> that leaves us either abandoning this effort or trying to generate additional money to get it done. I think that it needs to be done even if the state law by implication does not mandate it. Because we need to know. The other thing is the state is insisting on a new model, and I think that we ought to in good faith as officials and managers try to comply. And part of this is right now I think us trying to come up with a look at more additional money. The question is from I guess the perspective of deloitte and touche, is there a whole lot of difns in their ability to do their work between 150,000 and 175,000. 175,000?
>> I think part of that, judge, is they are making an estimate of what time it's going to take and what they're going to have to look at. The more evidence they get to narrow that, they can give you a better opinion. If in fact the city today turns over their process review, we give it to the director, he looks at it, he says yeah, this really looks complete, he calls the city, finds out what it's going to take for them to get in and audit that, and that engages more hours -- less hours than they thought, then I think the cost will go down. So I think some of that is they are estimating what they think it's going to take. They've received evidence that shows it will take them less time, then I think you will see the cost go down.
>> if we have the right county people and the right city people to sit down with deloitte and touche. Right now I guess I'm asking 150 or 175. And what do we expect from the city and can the city deliver that in order for deloitte and touche really to do the independent audit that we think we need? And I think the legislature, when they asked basically how did you determine whether your fees duplicate each other or not, and I assume they want to see a report that was conducted by somebody a bit more expert than we that supports our conclusion.
>> right. And if there is a party, whether it be us or them or the city, that does not cooperate, then one of the conclusions of the auditor would be we were not able -- based on our request we were not able to get the information we needed and therefore we can't make a conclusion here because one party did not cooperate. That's a conclusion, not a happy conclusion, but it is a conclusion. And if that's the conclusion they need to draw, then they need to do that. I hope that --
>> it will cost us a whole lot more money if we don't do it.
>> I guess my question is we can't -- we're not going to get this thing done by deloitte by January 1, right? I mean, today is the 10th. So we're not going to get it by January 1.
>> I think that's given.
>> okay. If we're not going to do that, then why don't we go to binding arbitration with the fees and the city gets forced to have to get -- I mean, I guess. I mean, I don't know. I haven't been able to force them to do anything so far, but I don't know exactly what binding arbitration -- I mean, then what do you have? But I'm just looking for a way to, number one, not spend it all ourselves and to, number two, at the end even though they may kick and scream, you know, all the way, if they get forced to get into binding arbitration, then they're players. Then whatever comes out of it happens. I mean, I guess if we could do this thing by January 1, then okay, if that's what you want to show the legislature, but if we could do it that way -- tom, is that something that -- would we be able to take the fee bill and after January 1 just say boom, okay, we're going to binding arbitration, that's what the law says and this is the thing we're going to do?
>> the way I read the law, excuse me, is that you literally go to arbitration on anything you can't agree on. With relation to house bill 1445 and what it means, the power sharing arrangement that the city and the county have agreed to, I think when the legislature added the arbitration requirement, it was in response to stakeholder criticism that cities and counties had entered into paper agreements. In other words, they had an interlocal agreement by the April 1st deadline. That's all it was was a paper agreement, and they were still as a practical matter had agreements that still weren't being resolved. Again, I think the -- you know, the -- I know there are legal issues in some of this, but I think the arbitration could? be -- involve the legal issues.
>> tom, even if so, let me ask you, because arbitration appears that there may be some disagreement, of course. As you stated, if there are disagreements, then arbitration would be the arena where the disagreements would be resolved. The expense of how -- I guess we're going to the expense out of this. It's all about money also. How that would be determined as far as the amount of money that would be needed for any disagreement to go before the arbitration. I know time that's put into it, a lot of other things are possible and, money, of course, becomes a big deal here. As long as the arbitrators are there on the clock, the more expensive it's going to be. In settings similar to this, is there any governing situation whereby --
>> the statute says the cost of the arbitration is split equally between the city --
>> between the city and the county. That's what I wanted to get to. Ultimately I suppose whether any particular -- you've got to have a set of facts to deal with to say this is an issue that's subject to this arbitration, but it strikes me the intent of the statute was -- the intent of the legislature in adding the arbitration requirement was if there's a disagreement on how to share power under option 4, you know, that's subject to arbitration.
>> okay. And I guess my point then is at this time just see what we can do to lessen the amount of money that we would have to spend in arbitration. How do we do that? I think the amount of money that we're suggesting right now is something that we kind of looked into as far as going forward. I'm still supportive of going forward with this, and hour -- however, there have been some discussions that have come up as far as in kind contribution from the city of Austin to ensure that the scope of work -- what the services and things that the group that's going to do the study has the proper information to do these things. So my concern at this time is with the amount of money, how much can we get done with the less expense to the county and the city that the tax bears have to bear, how much can we get done for approximately that amount of money? We're talking about $150,000 as far as I'm concerned.
>> what's the next step in being able to answer those questions?
>> for the city to look at the city's process.
>> then deloitte gets with the city and county on what's available? Do you want to do that between now and next week?
>> I hope so.
>> deloitte will want to be paid for that work too, right?
>> yes.
>> I don't think they'll do much work when we don't have a contract with them.
>> I think we should have our willingness to pay for this service up front because we need to make a determination. And if it causes them to prioritize it so we will know by next Tuesday, I think we ought to. It seems like we should proceed, and it will cost if we do, as far as if we back off. I'm recalling that a month or so ago we determined that in-house we don't have the staff to do this.
>> yeah. The major reason too is we believe that it needs to be an independent audit. And whereas I think I would tell you we could do an independent audit and I think we could, I don't believe it would be perceived by stakeholders, I really don't because we work for Travis County, so I think that this has been a hot issue, it's been long going, it is a management audit and I think it is in the county's best interest to have an independent audit. My recommendation is that we hire deloitte if you want an independent audit to do that work and sign their name to it.
>> where we seem to be headed is try to figure out whether we're looking at the cost of 150 or 175 and having deloitte comfortable with what the city -- the city knows what's expected of it, and it commits on being able to provide whatever deloitte needs. The other thing would be what timetable are we on now? This will take some work. So we need deloitte to let us now how much time deloitte thinks it will take for them to give us a completed product.
>> what I was going to say is when we met with deloitte and touche and accounting staff, they were familiar with some of the process staff that we have on board because the persons have worked private sector and all and they have worked with them. So they were familiar with the type of products they did, and they said they would have to see it, but knowing the type of work that they do and the mapping, that was the same type of work they were going to do. So their work would be complicate active of what we have already done. So we would be hope haep to work with them and that team. And that was the large majority of the cost for your study. I just wanted to add that.
>> and lisa, you can turn that over in paper to think it y be better to have a meeting and then have some papers of what the findings were.
>> what I mean is --
>> we have a document and we have the flow. So I'm just saying --
>> if you have a product you could give deloitte.
>> there's a product, yes, and they would be familiar with the methodology and how we've done that.
>> we'll have that back on next week. Is that okay?
Last Modified: Tuesday, December 10, 2003 6:44 AM