Travis County Commissioners Court
September 21, 2004
Executive Session Items
Now let's call back to order the voting session of the Travis County Commissioners court and we're ready to move into executive session. Unless there is something super critical that I don't know about. We will first receive legal advice on an item we talked about just before lunch, number 11, the contract with gulf states for emulsified asphalt. That will be under the consultation with attorney under the open meetings act. 43, receive briefing from the county attorney in Travis County, et al v. The hollow inc. (osiris investments, llc resale deed), and take appropriate action. Consultation with attorney exception. 44, receive briefing from the county attorney in Travis County, et al v. Gary russell (mark daniel brown resale deed), and take appropriate action. Consultation with attorney 45, receive briefing from the county attorney in Travis County, et al v. Fred riley gmc trucks and motor homes, inc. (w. Newman casey resale deed), and take appropriate action. Consultation with attorney. 46, receive, briefing from the county attorney in Travis County, et al v. Dorothy i. Crump (samuel allen/craig mcnabb resale deed), and take appropriate action. Consultation with attorney. 47, receive briefing from the county attorney in Travis County, et al v. Earl o. Forester (liliane and blaise faxigue resale deed), and take appropriate action. Consultation with attorney exception to the open meetings act. 48, consider and take appropriate action regarding the lease agreement for parking spaces in the 816 congress parking garage at 9th and lavaca. That's the real estate, real property stoepgs the open meetings act 49, consider and take appropriate action regarding the lease between Texas rural legal aid, inc. And Travis County for office space located at 2201 post road. That's the real property exception to the open meetings act also. Let's also announce 49 under the consultation with attorney exception just in case we need it. 50, receive briefing from county attorney and take appropriate action in hci equity partners, lp v. Travis County et al. Consultation with attorney exception to the open meetings act. 51, receiving briefing and take appropriate action in annell raymond cantrell v. Travis County et al (frasier; medical malpractice; personal injury). Consultation with attorney. 52, receive legal advice and take appropriate action on aoe-do we need 52, john?
>> [inaudible].
>> that's fine. I will not announce it. 53, receive briefing from county attorney regarding settlement negotiations in richard mccain v. Travis County. Consultation with attorney exception to the open meetings act. 54, receive briefing from county attorney on request from stewart & mclane regarding appeal of deputy constable pct. 5 from decision of grievance panel, based on interpretation of ch. 9 Travis County code, and take appropriate action. That's posted under the consultation with attorney and the personnel matters exception to the open meetings act. We probably ought to hear from legal council on 54. And then come back and that way we'll be able to understand what points you make. We will discuss these items --
>> judge, did you want to call up item 11? Tph-rs that was related to the asphalt. [inaudible].
>> I thought you did that.
>> he called up 11.
>> okay, you did call it up?
>> uh-huh.
>> I didn't hear it. Thank you.
>> we'll discuss those items, but we'll return to open court for testimony and before any action.
>> > we have returned from executive session where we discussed number 11. We did discuss we need to take another week to mull over and make a decision next week. That's the decision involving gulf states asphalt and our contract with them for emulsified asphalt. Anything else today? We'll have it back on next week. Number 43, move that we execute a resale deed to osiris investments.
>> second.
>> discussion? All in favor? That passes by unanimous vote. 44, I move we authorize the county judge to sign the resale deed to mark daniel brown, who has paid to Travis County the sum of $5,120.
>> second.
>> discussion? All in favor? That passes by unanimous vote. On 45rbgs I move that we authorize the county judge to sign on behalf of the Commissioners court a tax resale deed to w newman casey who has paid to Travis County the sum of $7,812.72 in cash.
>> second.
>> discussion? All in favor? That passes by unanimous vote. And on item number 46, I move that we execute a resale deed to samuel allen and craig mcnabb who paid to us the sum of $3,108.77.
>> second.
>> discussion? All in favor? That passes by unanimous vote. And on item number 47 that we move that we execute a resale deed to liliane and bl aeufplt se faxigue who have paid to Travis County the sum of $15,000.
>> second.
>> discussion? All in favor? That passes by unanimous vote. We also discussed number 48 involving the parking spaces and the 816 congress parking garage at 9th a lavaca. I move that we approve a newly drafted contract with the same terms and conditions as are current and the judge be authorized to sign on behalf of the Commissioners court as long as conditions remain the same.
>> second.
>> discussion? All in favor say aye? That passes by unanimous vote. On number 49, that involves the Texas rural legal aid, incorporated. I move that we execute a one-year extension of the current lease which will take us through September 30th of '05 at the same rate as the current lease with a the 0-day advance -- 890-day advance notice requirement of termination.
>> second.
>> and that we communicate there seems to be a little disagreement on the specifics, but this should be consistent with a memo that they sent to us. Any more discussion? All in favor? That passes by unanimous vote. On number 50 we were given language here for request for directions from the county attorney's office. And that language was real important and probably is why I misplaced it.
>> I have my notes, but --
>> the directions will be basically that we pay cost and attorneys fees from the risk management fund and publication fees and that claims be paid out of a special reserve that has been set up. That reserve ought to contain more money than the total of the claims, and that we expedite processing of those claims as presented and that we ask the -- I guess communicate this authorization to the county auditor.
>> second.
>> any more discussion of that?
>> did he need to be authorized to sign anything?
>> and I did sign. I did include the part about immediate release? I never [indiscernible] put stuff away. I may not be able to locate it immediately. Any more discussion in all in favor? That passes by unanimous vote. On number 51 involving the claim of anell raymond be cantrell, move that we authorize settlement of this claim in the amount of $135,000 and that we authorize immediate release of funds or expedited release consistent with the remediation agreement. Presume at some point we will have a full settlement and release placed before us.
>> second.
>> any more discussion?
>> [inaudible].
>> move that we authorize Commissioner Sonleitner to sign this big soelgtsment. [laughter]
>> on this particular one, I am happy to do it. Thank you, judge.
>> get choked up when we go over $10,000. Any more discussion? All in favor? That passes by unanimous vote. 52 we did not discuss. We'll have that back on next week. I know we will have action to take on it next weekment and number 53 is the richard mccontain versus Travis County case. Move that we basically identify a source of funding, take another week, but indicate our intention to resolve this matter one way or another next week.
>> second.
>> and those will be directions, but the motion in the form of a motion signed. And should taeu the lead on -- take the lead on trying to come up with source of funding options? And try to get those to the court by Thursday or Friday?
>> that will be fine.
>> assuming that [inaudible] the other side what the source of funding is there.
>> I think there's a $40,000 thing that has been identified.
>> we understand we have a lien for the full amount.
>> we have some suggestions as to where to find the money.
>> okay. Any more discussion? All in favor? That passes by unanimous vote. Number 54 involves a claim from stewart and mclane regarding appeal of deputy con stphabl precinct 5 from a grievance panel decision in the employee's favor. Under chapter 9 --
>> not -- [inaudible].
>> you are thinking of the previous one.
>> the termination was not in the employee's favor. But the question here is the interpretation of chapter 9 of the Travis County code. And what happened is the employee wants to appeal to see -- the adverse decision of the grievance panel.
>> that's correct, judge.
>> okay. Now, two things come to light. First is that elected officials are a little different at Travis County and there is a long line of a.g. Opinions and cases that basically bestow upon them certain autonomy. And our chapter 9, though awkwardly worded, cannot give us more authority than in fact we have. And I think the intention there was where the elected official was in place basically to handle the appeal, we would have to defer to the elected official and not the Travis County. We did look at the wording. It could have been clearer, but I don't know that clearer language would take from the elected official authority really to make the call on the avenues of appeal for the elected officials' employee. Now, if the employee worked for the Travis County Commissioners court, clearly our policy would be invoked. But any of the numerous elected officials at Travis County really retain pretty much the total say-so over employees that they hire and have the right to fire under shropshire.
>> if I could, I brought some materials for the Commissioners to view in my discussion.
>> thank you. You give me three, i'll pass them down for you.
>> and essentially with regard to the issue of the authority of the elected official, the elected official in this case has agreed to abide by the terms and the conditions in the yellow book. They sign an agreement in the book that says that they agree to it. So as far as their autonomy is concerned, i'd say that's waived. Acknowledgement is found at the back of the yellow book. It says i've received, read and understand all matters set forth in the Travis County code chapters 9 and 15 and agree to abide by its provisions realizing change in the appointment may unilaterally be implemented by the Travis County kpheurb. [indiscernible] contact and employment guaranteeing a specific term or tenure of signing this. Prior to this I was given an opportunity to ask any questions about matters described in this manner. By placing my signature I specifically agree to all terms and conditions described in the text of the statement of general policies appearing at the beginning of this manual. So as far as the case law that would tend to say something different, I don't think it applies because constable elfant clearly signs his intention to abide by what is written in this manual. And the most important thing that we have to deal with today is the interpretation of the appeal provision which is found in 9.257. It's under tab 1 in your materials. If you'll look on the second page at provision k, it says within 10 working days after the decision, the grievant and the person grieved against may appeal a decision of the panel to the county judge and the Commissioners court or the elected official. What makes this such that it cannot be an appeal back to the constable is the simple, ordinary meaning of the words appearing in the text. And if you'll look again on 9.954, the next page under tab 1, first of all, it states the Commissioners court shall resolve any questions regarding interpretation of this chapter. Underneath that is another provision regarding conflict with the constitution. It says that where possible you are going to give meaning to the provision as well as possible if it conflicts with the constitution. Then on the next page, on e it says working phrases shall be read in context and construed according to the rules of gram March and common usage. With that I would like you to turn to the last page and I have highlighted the definition of the word "appeal." If you look at the word "appeal" and its common usage, this is a copy out of black's law dictionary, something that all attorneys generally agree is a good source for the common meaning of words appearing in statutes. This says resort to a superior court to review the decision of an inferior court or administrative agency. A complaint to a higher tribunal of an error or injustice committed by a lower tribunal which is sought to be corrected or reversed. There are two stpaeupblges of appeal in the federal and many state court systems, appeal from a trial court to eupbt need 80 appellant court and supreme court, there may be several levels of appeal within an administrative agency. This is an appeal within an administrative agency. And appeal by its very definition can't go back to the person that made the decision in the first place. That would not give meaning to the word "appeal." It could contradict it. Not only would it contradict the word "appeal," but it would also completely obliterate any sense of fairness in this. There would be no appeal. Not only would it conflict with the word appeal that you would basically say that although there's an appeal provision in there, if you have an elected official you, really don't have appeal.
>> let me ask you one simple question.
>> yes.
>> let's read k again. So you are saying that if there were an employee of the Commissioners court, let's say somebody who works for the road division, that they could then take it to a grievance panel and then pick any elected official within Travis County to have their grievance heard by them?
>> I don't know.
>> well, I think clearly not because the language doesn't say an elected official, it says the elected official. So if I go by what's in here, it says it can go to the court or the elected official, and clearly I think it means because the converse would be equally not true that somebody that works for the Commissioners court could go pick the elected official that they chose to have their grievance. The reverse is also true. Then going immediately to the next page, Commissioners court shall, not may, shall resolve questions regarding interpretation of this chapter. I think clearly the judge was trying to lay out in a rather nice way that if there is a question, does it go to the Commissioners court or the elected official. We're saying it goes to the elected official. And we've resolved the question and that should be the end of it.
>> are you saying that I?m not having a hearing this morning on this issue or -- today?
>> a question was raised.
>> for us to decide whether the hearing would be before the constable or the Commissioners court.
>> that's right.
>> so this would not be the hearing itself.
>> right.
>> but what I?m saying is our interpretation of this policy and the law has been that as elected officials, they are the ones who conduct the appellate hearings of their employees. And our interpretation of sh opshire is do not have authority to exercise that authority. Now [indiscernible] we have a whole lot of personnel policies. Compensation, benefits, a whole lot of stuff. But as to the ultimate call on employees that work for the elected official, our interpretation really has pretty much always been it's the elect official's call.
>> and if constable elfant or any other elected official said they are waivering and it ought to go to Commissioners court, why is the elected official even mentioned in here at all?
>> I assume that it would mean one working for elected official could choose. But essentially there is no appeal back to the person who made the decision in the first place. That would be pan take mount to appeal to go an appellate court and bringing it back to the trial court for redetermination on appeal if you don't get what you want in the appellate court. That's not an appellate decision.
>> being an elected official and being, I guess, the [inaudible] of district court as appropriate. I?m not saying it ought to be like that and it's a good thing, but I think the case really ties our hands a lot more than I wish it did. We put these policies in place, we are saying here are the Commissioners court policies, [inaudible] for elected officials too. And we got most of the elected officials to say rather than adopting our own policies, we'll just buy into the Commissioners court policy. But I don't know that any of them concluded I?m giving up certain rights by doing this. I think they saw it as a voiding certain responsibility from employees. At the same time word comes from a specific employee that -- I don't know that tpheuf us ever thought that we would have the ultimate call about terms and conditions, about whether to settle grievances, et cetera, for the employees of the elected officials. When you go through administrative process, at some opponent you will resolve your differences. My understanding has always been few don't go back to elected officials, it's kind of like after the elected official makes the call. I think that's how we have interpreted it since i've been with the county.
>> well, then, my last argument is obviously this violates the constitution. And that it violates fundamental fairness of due process do knee my someone appeal that's been pretty clearly stated in the manual of some kind. I mean certainly it says if there's a right to an appeal there. But to put the man back to the position of asking for appeal before the person that made the decision is violative of the constitution, I have three cases that specifically state that partial at by the decision-maker in an appeal and administrative setting violates the constitution because it violates fundamental fair -- the fundamental fairness of the due process clause because that person is biased. It pre-judged the facts.
>> where do you factor in the right to access the judicial system? That's real extensive so I?m not saying that's the best alternative, but I am saying that's there. So if the Commissioners court is not available, [indiscernible] governed by the elected official [indiscernible] when you are looking at [indiscernible] or the district court system.
>> I understand that, but what I?m looking at is a regulation that has the force and effect of law.
>> as to a whole lot of employees, yes. As to a lot of others, no.
>> well, let's go back to 9.954-a. This chapter shalling construed strictly so that no rights are created that are not specifically created by this chapter. Show me specifically in this chapter where an elected official is defer to go the Travis County Commissioners court to decide appeals. Not there.
>> within 10 working days after the decision the grievant and the persons grieved against may appeal a decision of the panel to the county judge and the Commissioners court. It says it that simple. I don't know how much more simple it can be.
>> or the elected official.
>> I understand, but that's not clearing the matter up for me. I find it's choosing the Commissioners court.
>> and we are the ones strictly in here that are allowed to resolve any questions regarding the interpretation. And we choose that it clearly goes to the elected official because we do not have rights that are not specifically given in here that pre-date everything that date back to sh rofplt pshire versus renfro.
>> I think because he signed an acknowledgement he would follow these rules and regulations.
>> in which case if any elected official did that, why is there any mention of an elected official being the appeal point. It would simply say the Travis County Commissioners court. There is a reason the elected official is in there, not an elected official, the elected official and that's clearly meant to tie back to the elected official who adopted the procedures.
>>
>> [one moment, please, for change in captioners]
>>
>> ... Sign a piece of paper they agree to have binding participation in a case. They're enforceable through the courts.
>> arbitration is.
>> and that is what I liken this to.
>>
>> the one thing that so much of this argument is based on is that acknowledgement at the back. That is not the acknowledgement that the elected official signs. That the acknowledge thament the employee signs saying I?m gotten a copy of these. That is not something that binds the electricked officials, that is something that the county uses to say, you know, I never knew that, well, look, you signed the thing that said you read the personnel policies that we gave you. So that -- that whole statement is not what the elected official has said.
>> I do believe i've seen signed acknowledgements by elected officials and then written exactly in those words.
>> the point, there, though, still remains is this court only has the authority that the constitution gives it of this state as well as that elected official. He does not -- even if he wanted to, he does not have the authority to waive and convey to this court the authority to hire and fire his employees. That's what the renfro versus shropshire case is about, you don't have that authority, he can't give it to you. Constitutionally, that is what that case is about.
>> let the record. [multiple voices] we would like to have that authority.
>> it's quite interesting reading and that case is cited around the state of Texas in practically every single conference of urban counties meeting that I ever guilty to. It's clear we can set the budget and the second the budget is adopted and we're in a fiscal year we cannot say anything about how those dollars are being spent or anything that goes on with the employees. Our next window is the following budget year whether we choose to keep the budget at that amount or not or the number of slots in that department, but we cannot say anything about how those dollars are spent the second the budget is adopted and the budget has clrly been adopted more than a year ago.
>> you did good work here.
>> you need to read shropshire v renfro.
>> our hands are more tied -- I wish you were rite on our authority.
>> well, all I can say is that that case does not deal with situations where constables are agreeing to abide by the rules.
>> well, you need to reread shropshire v renfro, it's quite specific about the Commissioner's court's authorities with elected...
>> right.
>> thank you.
>> thank you.
>> do we need --
>> thanks for your patience also.
>> do we need an actual motion?
>> I think that would be...
>> I would make that motion that the questions before us whether the authority to appeal is to the Commissioner's court or to the elected official and the elected official who in this case is [inaudible]
>> discussion? All in favor. That passes by unanimous vote.
>> thank you.
>> did you want to direct that... Verify [inaudible]
>> I think we ought to put it on our loyal list of things to do, the early part of f.y. '05 which begins October 1. I think we ought to revisit it and clarify it.
>> thank you, Commissioners.
>> thank you.
>> thank you.
>> now, item 35, but we are a little late in reaching, and that is to conduct interviews of a position for human services and veterans services. [indiscernible] get urbanized and hopefully the interview also flow smoothly. We have just announced it and we will conduct these interviews in executive session under the personnel matters exception. Right?
>> right. Did you announce which item it was?
>> item number 42 which I just read. Okay?
we have returned executive session where we for the last three hours or
so conducted interviews, about five interviews of applicants for the position
of executive manager of health and human services and veterans services. We
will make our decision next Tuesday after a -- after a long, mulling period
and a short executive session discussion. Therefore, a motion to adjourn is
appropriate.
>> second.
>> so move.
>> so move.
>> all in favor? That passes by unanimous vote.
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.
Last Modified: Thursday, October 27, 2005 9:38 AM