January 8, 2013

Office of the Austin City of Auditor
City Auditor Kenneth Mory
301 W. 2nd Street, Suite 2130
Austin, TX 78701

Re: AGR’s Comments to the Auditor’s Draft Interpretative Guidelines

Dear City Auditor Mory:

On behalf of Austinites for Geographic Representation (“AGR”), I respectfully offer our official comments on the Auditor’s draft Interpretative Guidance on the Redistricting Process (“Draft Guidance”).  As the authors and proponents of Proposition 3, we believe that we offer unique insights into the drafting, purposes, and interpretation of the voter-adopted independent citizens redistricting process. We truly appreciate this opportunity to comment.

We first want to commend you for the “Revised Redistricting Process Timeline,” which we support. We believe the revised timeline now allows for the timely drawing of the district maps by the Independent Citizens Redistricting Commission (“ICRC”). It is essential that the ICRC finalize and approve the maps before the end of 2013, so there is sufficient time for preclearance by the Department of Justice (“DOJ”). We think it crucial that the deadlines in your revised timeline be adhered to strictly and not be postponed, because otherwise the ICRC will lack sufficient time to draw and approve the final maps and the DOJ to pre-clear them by early 2014.

I. Introduction. We have four major comments on the Draft Guidance to better reflect, in our view, the legislative history, intent and purposes of Proposition 3 (hereafter the Austin law or Austin Charter):

1) the Draft Guidance should be revised to specify  that the Applicant Review Panel has an affirmative duty in selecting the pool  of  60 most qualified applicants to consider applicants’ racial, ethnic, geographic, and gender diversity in order that the ICRC, as intended by the Austin Charter,  reflects the diversity of Austin.

2) the Draft Guidance should be clarified, and the application revised to reflect, that the qualification that commissioners have voted in at least three of the last five  City of Austin general elections includes both May and November City general elections.

3) the Draft Guidance’s interpretation of the disqualification for applicants serving as  political party officers be revised to exclude precinct chairs, who are not day-to-day decision-making principals of the parties and therefore do not reasonably appear compromised by conflicts of interest.

4) the Draft Guidance should provide that the chosen qualified auditors will be paid reasonable and necessary compensation for their services .

II. Look to California’s Law in Interpreting Austin’s Charter

Austin’s ICRC process was modeled closely on California’s model, because of California’s successful implementation of the first ICRC.  See, e.g., Austin Charter Revision Committee’s Background Memo supporting an ICRC. It, therefore, is important to look to California’s law and interpretations in construing Austin’s ICRC provisions. In interpreting ambiguous statutory language, Texas courts look, among other things, to the “circumstances under which the statute was enacted” and “the legislative history.” Tex. Gov. Code 311.023.

In this instance, Austin’s law was clearly modeled on the California law and its prior interpretations. As one of the authors of Proposition 3 on behalf of AGR, I (Fred Lewis) have personal knowledge that Austin’s ICRC was based on and relied heavily on California’s Proposition 11, adopted in 2008 (“California’s law”).  This history is also clear from a comparison of the very similar language and structure of the Austin and California laws, as well as AGR’s materials and statements that Austin’s local ICRC was modeled on California’s statewide ICRC.  Because of California’s prior success in implementing its commission, AGR intended to follow closely California’s interpretations and approach to implementing its law. This legislative history is crucial to properly interpreting Austin’s law.

III. Four Major Recommendations:

Recommendation One: The Draft Guidance should be revised to state clearly that the Applicant Review Panel has an affirmative duty during the selection of the pool of 60 applicants to select a sufficiently diverse pool such that the commission itself will reflect the racial, ethnic, geographic, and gender diversity of Austin. We recommend Draft Guidance Section 2(A)(4) be revised as follows: “In Phase IV, the Panel shall select, according to the criteria set forth in the charter, a diverse pool of the 60 most qualified applicants from the pool of qualified Commission applicants and submit this selected pool to the city council. The panel has a duty, in addition to selecting applicants for the pool based on their qualifications, to select applicants with regard to assembling a pool whose membership is diverse.

If the applicant pool is not racially, ethnically, geographically, and gender diverse, then the Commission itself will not be diverse, undermining an important, required criteria for the Commission’s composition. Commissioner diversity is also essential to public trust in the ICRC process. The Draft Guidance should be clarified to specify that the Applicant Review Panel has an affirmative duty to select a diverse as well as qualified pool, as California has interpreted its  very similar provisions.

The relevant Austin charter provisions provide that “the City Auditor shall take all reasonable and necessary steps to ensure that the pool has the requisite numbers, diversity, and qualifications.” Section 3 (I)(1)(emphasis added). The reason for requiring a diverse applicant pool is to ensure that during the selection process a diverse Commission membership is selected. The Austin Charter, Section 3(I)(9), makes clear that the Commission members must reflect the racial, ethnic, geographic, and gender diversity of Austin:  “These six (6) appointees shall be chosen to ensure that the commission reflects the diversity of the City of Austin, including, but not limited to, racial, ethnic, [geographic] and gender diversity… Applicants shall also be chosen based on relevant analytical skills and ability to be impartial. ” (emphasis added). It should be noted that this provision provides that the applicants should be chosen on diversity and “also” skills and impartiality. ( See also Section 3(I)(6): “These persons shall be the most qualified applicants on the basis of relevant analytical skills, ability to be impartial, residency in various parts of the City, and appreciation for the City of Austin’s diverse demographics and geography.”) The Commission members, however, cannot be sufficiently diverse, if the Applicant Review Panel does not affirmatively select the pool of 60 qualified applicants based on the diversity criteria in the Austin law.

Based on very similar language to Austin’s law, California interpreted its law to require the Review Panel to have an affirmative duty to select a diverse applicant pool. California’s law, like Austin’s, provides that “the State Auditor shall initiate an application process, open to all registered California voters in a manner that promotes a diverse and qualified applicant pool.” Calif. Gov. Code 8252(a)(1). In addition, California’s law lists the exact same diversity criteria as Austin’s law (“racial, ethnic, geographic, and gender diversity)” and nearly identical language that the most qualified applicants should be selected based on ”relevant analytical skills, ability to be impartial, and appreciation for California’s diverse demographics and geography.”: Calif. Gov. Code 8252(d), (g). Relying on California’s language, California held that the Applicant Review Panel has a “duty, in addition to selecting applicants for the pool based on their qualifications, to select applicants with an eye toward assembling a pool whose membership is diverse.” California Bureau of State Audits, Memorandum No. 5: Relating to Diversity (2009), p. 2 (emphasis added). (All such memoranda can be found at California’s ICRC site at http://wedrawthelines.ca.gov/application_regulations.html). California properly concluded “that the panel must consider diversity in selecting the pool of 60 most qualified applicants” and that it is “the intent of the Act that the process for selecting the members of the commission is designed to be reasonably representative of California’s diversity.” Id., p.2 Similarly, Austin’s law should be interpreted to require an affirmative duty on behalf of the Applicant Review Panel to select a diverse applicant pool of 60 so the Commissioners will be reasonably representative of Austin’s diversity. .This should be made clear in the Draft Guidance.

We also note that under California’s identical diversity language, California included economic diversity (ie., representation by the less affluent) in its applicant diversity criteria. Id, at p.4. This should be followed as well in Austin’s interpretation and in the Draft Guidance..

Recommendation Two: The Draft Guidance should clarify, and the application be revised to reflect, that the qualification for commissioners to have voted in at least three of the last five  City of Austin general elections includes both May and November  general elections. We recommend that the following definition be added to Draft Guide, Section2(a)(4): “(y) City of Austin general elections” means May and November City elections.”

Based on the Austin law’s intent and legislative history, as well as the “consequences of a particular construction” (Tex. Gov.  Code 311.023(5),  AGR believes that the Austin law’s minimal qualification that commissioners ”shall have voted in at least three of the last five City of Austin general elections immediately preceding his or her application” should be interpreted to include both May and November general elections in  Austin. Austin’s law does not define “City of Austin general elections,” but this phrase clearly comes from California’s similarly worded law, which provides that an applicant “shall have voted in at least two of the last three statewide general elections held immediately prior to the date of application.”  Calif. Const. XXI, Sec. 2(c)(3). Under California law, general election is defined to mean ”either of the following: (1) The election held throughout the state on the first Tuesday after the first Monday of November in each even-numbered year; (2) Any statewide election held on a regular election date as specified in Section 1000.” Cal. Election Code 324(a).Thus, the phrase general election under California law includes both November and regular election dates. As applied to the City of Austin, general elections, therefore, should include November elections and the May council elections. Under Austin’s law, as properly interpreted, applicants should have voted in 3 out of the 5 immediately preceding City elections in May and November, which are: November 2012, May 2012, May 2011, November 2010, and May 2009.

This interpretation not only comports with AGR’s intent and the legislative history, but best serves the purpose of this minimal qualification provision: that applicants through voting show an interest in the civic affairs of Austin. Applicants that voted in November City elections have shown as much civic interest as applicants that voted in May City candidate elections. The November 2012 general election involved 11 charter amendments (including this amendment’s profound change to a single member district system) and 7 city bond propositions totaling $300 million. The November 2010 general election involved authorization of $90 million in bonds. The Austinites who voted in these November general elections exhibited the requisite interest in Austin civic affairs to meet this minimal qualification.

AGR’s interpretation also provides for a larger and more diverse pool of applicants, which is consistent with and furthers the Austin law’s requirement that there be “a large, diverse (by race, ethnicity, gender, and geographic) and qualified Commissioner applicant pool.” Section 3(I)(1). Based on the attached analysis done by the respected Austin voter database firm Opinion Analysts, under AGR’s interpretation of general election, 68,627  Austinites would qualify; under the interpretation that general election means May elections only, 35,418 residents would qualify, around half as many. See attached.

On the other hand, interpreting this provision to include only May elections is inconsistent with the legislative history modeled on California’s law as well as the  intent of the drafters to have a ”large, diverse” applicant pool. This unsupported construction of an ambiguous provision results in a smaller, less diverse pool, which impedes effectuation of the law’s clear intent, as explained above, to have a large, diverse applicant pool and a Commission that reflects the diversity of Austin. This erroneous interpretation restricts the applicant pool unnecessarily and is contrary to the intent and history of the Act. Moreover, it results perversely in a less civically engaged applicant pool. By including only May City elections, an applicant can qualify even if they haven’t voted in City elections for 3 ½ years:  the applicant can have voted only in the May 2006. May 2008, and May 2009 elections and yet qualify. In contrast, under AGR’s interpretation, the applicant must have voted no later than 18 months before applying, ie, in the May 2009, November 2010, and May 2011 elections. The Draft Guidance should be revised to define general city elections as including May and November City elections.

Should the Auditor follow the May elections only interpretation, we believe it is imperative that the City Auditor at a minimum should mail a letter to all registered voters in Austin that have voted in 3 or more of the last 5 May elections asking them to apply to the ICRC. In addition, special outreach emphasis should be placed on increasing applications from minority and other communities that have historically voted at lower rates than Anglos in Austin. These expenditures would be required to fulfill the Auditor’s duty “to take all reasonable and necessary steps to ensure that the pool has the requisite numbers, diversity, and qualifications.” Section 3 (I)(1)(emphasis added).

Recommendation Three: The Draft Guidance’s interpretation of applicant disqualification for ”officers” of political parties should be revised to exclude precinct chairs, who should not be disqualified because they are not day-to-day decision-making principals of the parties and therefore do not reasonably appear to have  a conflict of interest. We recommend revising the definition in the Draft Guidance, Section 2(a)(4)(p)as follows: “Officer” with respect to a political party means a county chair, county secretary,  or a member of a party executive committee under Title 10 of the Texas Election Code.”

In light of the legislative history, proper constitutional construction, and intent of the Austin Charter, Austin’s disqualification for being an “officer” of a political party should be interpreted to include only day-to-day major party principals and exclude precinct chairs.  We again look to California law because its relevant disqualification language is identical to Austin’s charter: Austin’s provision provides commissioners cannot for five preceding years have “served as an officer, employee, or paid consultant of a political party” (Section 3(I)(3)(A)(iii); California law provides they cannot for ten preceding years have “served as an officer, employee, or paid consultant of a political party” (Calif. Gov. Code 8252, Sec (a)(2)(A)(ii)). In interpreting its conflict of interest disqualification provisions, California construed them narrowly because serving on the Commission is a public office and public service is a constitutional right. California Bureau of State Audits, Memorandum No. 2: Relating to Conflicts of Interest, p. 3, citing Davis v. Grossmont Unif. School Dist., 930 F.2d 1930 (1991). California rightly recognized that the conflict of interest provisions should be interpreted narrowly in light of their intent to disqualify only an applicant “who is so connected with the partisan politics of California, either by his or her own activities, or by the activities of his or her immediate family members, that the person’s ability to make decisions unaffected by the interests of the state’s partisan political leadership is either compromised or has the appearance of being compromised. Id., pp. 4-5. California’s regulations correctly reflect that an applicant can be impartial “although an applicant may have strong views, and may have participated in social or political causes,” if they have the capacity to be and are open-minded. Calif. Reg. Section 60800 (a).

In light of the constitutional construction required for disqualification for a public office, the legislative history, and AGR’s intent, the disqualification for being “an officer” of a political party should be interpreted narrowly and exclude precinct chairs. First, Texas’ political parties do not consider precinct chairs to be officers but to be members. In the section on officers of the county parties, the Texas Democratic Party lists only the County Party Chair and Secretary; precinct chairs were not listed in the officer section, but in the section for party members. Rules of the Texas Democratic Party, p. 12. Second, officers of an entity are generally understood to be “the people with day-to-day responsibility for running the corporation, such as the chief executive, chief financial officer and treasurer.” (Uslegal.com) Precinct chairs do not have day-to-day responsibility for running county political parties. It was the intent of the Charter’s authors that the disqualification for officers of a party include only principals with day-to-day responsibilities for running the party, and exclude party members or chairs who have no such authority.

Lastly, precinct chairs are not so engaged with partisan politics that it is reasonable to assume that they appear inherently compromised. Including precinct chairs in applicant disqualifications for conflicts of interests is an overly broad interpretation that doesn’t comport with the history, intent or proper constitutional constructions of the Charter.

Recommendation Four: The Draft Guidance and Draft Auditor Application should specify that the three chosen qualified auditors shall be paid reasonable and necessary compensation for their services, as intended by the AGR drafters and to effectuate the Charter’s purposes.

As noted above, a timely selection process is crucial to implementing the ICRC and single member districts. To timely obtain committed, qualified independent auditors for the Applicant Review Panel, AGR believes the City Auditor has the authority to and should pay reasonable compensation to them for their professional services.   In interpreting laws in Texas, Courts presume the “the entire statute is intended to be effective,” ”a just and reasonable result is intended,” and “a result feasible of execution is intended.” Tex. Gov. Code 311.021.

To comport with AGR’s intent, and ensure the law is effectively executed, the Applicant Review Panel auditors should be compensated fairly for their professional services. The Applicant Review Panel auditors are an integral part of the commissioner selection process, and the timely selection of qualified, impartial and diverse commissioners is crucial to the proper functioning of the commission.  The selected auditors also will be licensed, experienced professionals who, according to the Draft Application, are expected to spend three months this spring reviewing hundreds of applications. As the spring is often a busy time for professional auditors, it could be difficult to timely obtain committed, quality auditors without reasonable compensation.

Austin’s charter provides authority for paying the three auditors for their professional services, and it was the AGR’s intent that these professionals be paid reasonable and necessary compensation for their services. Section 3 (K)(9) mandates that the “the City of Austin shall appropriate sufficient funds to meet the operational cost of the commission.”  Operational or operating costs are commonly defined as all “expenses associated with administering a business on a day to day basis.” (Investopedia.com). The auditors’ professional services are clearly an essential operational cost in administering the commission process, since without these integral services, the commissioners cannot be selected properly and the process will not function as intended. Moreover, it should be noted that while the Austin law specifically provides that the citizen commissioners “shall not be compensated for their services,” there is no such limitation for the auditors.  While it was Proposition 3’s authors’ intent not to compensate citizen commissioners, it was our intent to fairly compensate auditors and others for their professional services. Just as the City Auditor’s staff is compensated by the City for their professional services during the commission process, the private professional auditors that make up the Applicant Review Panel should be compensated.  To ensure the law is properly and timely implemented, and comport with the law’s intent, all three auditors should receive reasonable compensation.

In conclusion, our most urgent concern, given that the application phase is about to begin, is that a large enough net is cast to ensure adequate representation from all sectors of the city, so that the required diversity of the applicant pool and Commission is assured. We believe, as the authors and proponents of the 10-1 Plan and the ICRC, that the combination of the draft interpretations, about which we have laid out our concerns above, could serve to unnecessarily narrow the diversity of the applicant pool, contrary to the Austin Charter’s intent.

Thank you, again, for your efforts and transparency in this process.

Fred Lewis, Attorney for AGR
Roger Borgelt, Co-Chair, AGR Advisory Committee
Gonzalo Barrientos, Co-chair, AGR Advisory Committee
Nelson Linder, Co-Chair, AGR Advisory Committee

Attachments from Opinion Analysts Inc. on statistics of eligible voter counts for Austin May elections and Austin May and November elections

How you can get involved

We hope you, and all Austinites, work to keep Austin livable for everyone.

Austinites for Geographic Representation has disbanded after accomplishing its objective: making the 10-1 plan of geographic representation the election law in Austin.