TCAA NEWS
(Volume 4, Issue 2 – February 2009)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

2009 TCAA Summer Conference – Register Now! Come join us for the best of both worlds: Earn MCLE credit while at the beach! The TCAA Summer Conference in South Padre Island will be held at the Isla Grand Beach Resort (formerly the Radisson Resort) on June 10-12, 2009. To register for the conference or for more information, please go to www.texascityattorneys.org. Special thanks to this year’s sponsors:

  • Abernathy, Roeder, Boyd & Joplin, P.C.
  • Banowsky & Levine, P.C.
  • Bickerstaff Heath Delgado Acosta, LLP
  • Brown & Hofmeister, L.L.P.
  • Davidson & Troilo, P.C.
  • Denton, Navarro, Rocha and Bernal, P.C.
  • Doyen Sebesta, LTD, LLP
  • FOIA Systems – Open Records
  • Hermansen, McKibben, Woolsey & Villareal, L.L.P.
  • LexisNexis
  • Lloyd, Gosselink, Rochelle & Townsend, P.C.
  • McKamie Law
  • Municipal Code Corporation
  • Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
  • Olson & Olson, L.L.P.
  • Ross, Banks, May, Cron & Cavin, P.C.
  • Russell & Rodriguez, LLP
  • Strasburger & Price, L.L.P.
  • Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
  • Texas Municipal League Intergovernmental Risk Pool
  • Thompson & Knight, LLP

This year’s topics include: (1) multiple ethics presentations; (2) climate change and its impact on municipal operations; (3) recent state and federal cases; (4) redistricting issues for city attorneys; (5) police/fire labor relations update; (6) municipal regulation of the natural gas industry; (7) legislative update; (8) real estate issues for city attorneys; (9) disaster issues; (10) CCN update; (11) airport law 101; (12) anatomy of a TCEQ enforcement action; and (13) FMLA/ADA update.

2009 South Padre hotel information: TCAA has put a hold on reservations at the Isla Grand Beach Resort (formerly the Radisson Resort) until Friday, March 27, 2009, at 8:00 a.m. At that time, rooms will be available on a first-come, first-served basis. To make your reservations, please call the Isla Grand Beach Resort directly at 800-292-7704 or 956-761-6511. (Refer to the “TCAA Summer Conference room block” to receive the conference rate.) TCAA has also secured several “overflow” hotels and will open those reservations at 9:00 a.m. on the same day. For details on those hotels, please go to the conference registration page at www.texascityattorneys.org.

My, how time flies! Mick McKamie (www.mckamielaw.com), a longtime municipal attorney and TCAA supporter, recently provided an interesting factoid. Mick first attended a TCAA conference in the fall of 1984, where he presented the “Recent Cases” to the group (state and federal cases were presented as one at that time). And Mick has attended every semi-annual meeting since. This summer’s conference will mean 50 consecutive TCAA meetings for Mick! If you have an interesting tidbit relating to TCAA that you’d like to share, please e-mail it to Scott Houston at shouston@tml.org.

TCAA Awards: TCAA has several programs that are designed to bring recognition to the unique qualities of those who practice municipal law in Texas:

  • TCAA’s Municipal Certification Program recognizes attorneys who demonstrate advanced knowledge and experience in municipal law. The program includes separate certifications for municipal prosecutors, municipal civil law attorneys, and office certifications.
  • The Galen Sparks Awards for Outstanding Public Service by an Assistant City Attorney. Galen Sparks served as an assistant city attorney and dedicated public servant for the City of Dallas for more than 27 years. He distinguished himself in a variety of areas of municipal law and generously shared his time and expertise in a way that substantially enhanced the professionalism of his fellow municipal lawyers. These awards are intended to recognize and honor a current or former assistant city attorney for significant and distinguished career achievements in the field of municipal law. (Note: In 2009, the TCAA board voted to grant two awards each year, one for an assistant city attorney from Texas’ eight largest cities (Arlington, Austin, Corpus Christi, Dallas, El Paso, Fort Worth, Houston, or San Antonio), and one to an assistant city attorney from the remaining cities.

    The recipients of this award will be honored at the TCAA Semi-Annual Meeting in South Padre. In addition, TCAA will waive the recipients’ seminar registration fee and reimburse the recipients up to $500 for transportation and lodging for the meeting. The deadline to apply to receive the award at the 2009 summer meeting in South Padre on June 10-12 is April 3, 2009.

For more information on these awards, please go to www.texascityattorneys.org.

Municipal Attorney Job Openings: For the most recent Texas Municipal League classifieds postings, please click here.

TML/TCAA Legal Defense Program
Amicus Brief, Attorney General Opinion, and State Agency Comments Filed

Building Permits: RQ-0775-GA; Authority of the Department of State Health Services to enforce state asbestos regulations against municipalities. This request asks, among other things, whether the Department of State Health Services (DSHS) may impose administrative penalties against a city that fails to confirm an asbestos study prior to issuing a building permit. TML and the Building Officials Association of Texas (BOAT) argued that the Texas Asbestos Health Protection Act is a state-level program that is designed to regulate asbestos rather than cities. TML and BOAT stated that their resources are available to DSHS to educate city officials on the asbestos requirements, and that education would surely be a better way to deal with the issue than administrative penalties.

Animal Euthanasia: Department of State Health Services (DSHS) Proposed Rules. TML filed comments with the Department of State Health Services (DSHS) urging that the department clarify its proposed rules regarding microchip scanning machines. The proposed rules stated that a shelter “should” scan all animals for microchips before moving forward with the euthanasia process. TML submitted comments including suggested additional language to clarify the fact that a shelter that does not already own a microchip scanning machine would not be required to buy one in order to comply with the rule. DSHS staff indicated that they would include this language in the final rule.

Articles

The Prompt Payment Act and Sovereign Immunity, Jeffrey S. Chapman, Ford, Nassen and Baldwin, Austin: On January 16, 2009, the Dallas Court of Appeals issued a significant opinion in McMahon Contracting L.P. vs. City of Carrollton, 2009 Tex. App. LEXIS 311 (Tex. App.—Dallas, January 16, 2009). This case is significant because it effectively shields cities from enforcement actions related to Prompt Payment Act interest and attorneys’ fees. The practical effect of the McMahon decision is to gut the Prompt Payment Act as a potential cause of action or remedy for contractors against governmental entities. Technically, a municipality is still liable for additional interest and attorneys’ fees under the Act in the event of late or nonpayment. However, contractors whose claims contain interest and attorneys’ fees will have no means by which to enforce those aspects of their claims. Read more.

Recent Texas Cases of Interest to Cities
Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Sovereign Immunity—Tort: Helen Herrera and Frank Herrera v. City of San Antonio, No. 04-08-00291-CV (Tex. App. – San Antonio, Feb. 4, 2009) (mem. op.). The court of appeals affirmed in favor of the city because the appellants provided no proof of a waiver of sovereign immunity that would make the city subject to suit.

Police Employment: Jeffrey Nelson, et al. v. City of Dallas and Chief David Kunkle, No. 05-08-0335-CV (Tex. App. – Dallas, Feb. 4, 2009). This case involves police officers suing the City of Dallas to prevent the city from disciplining them on what they argue are invalid citizen complaints. The City of Dallas has its own civil service rules rather than state law provisions. The city’s civil service rules require that the police chief disciplines officers and provide an administrative procedure for contesting and appealing the police chief’s discipline decisions, including an appeal to the city manager and the civil service board.

City police officers sued the City of Dallas when the city was in the process of taking disciplinary action against them, before the city’s appeals process was complete. The employees sought a temporary injunction to prevent the city from taking disciplinary action, arguing that the city was using an insufficient citizen complaint according to Chapter 614 of the Government Code. The city argued that the officers had not exhausted their administrative remedies under the city’s civil service rules. The trial court held for the city.

The court of appeals examined whether it had subject matter jurisdiction over this case under the theory of primary jurisdiction when the plaintiff police officers had not exhausted their administrative remedies. Primary jurisdiction is a doctrine that determines whether an agency or a court should make an initial determination in a case when both technically have authority to make the determination. A court defers to an agency, such as a city, when: (1) the agency is staffed with experts on the issue at hand; and (2) great benefit is had from the agency’s uniform interpretation of the rules in question. The officers argue that it does not matter whether the city had primary jurisdiction since the city arguably violated Chapter 614 of the Government Code when it used an invalid citizen complaint as the basis for the disciplinary action. The officers also argued that the city is not an “expert” in interpreting state law, and therefore should not be deferred to in this matter.

The court of appeals held that the city does have primary jurisdiction over disciplining its officers under its charter and ordinances. That is because the city is best able to interpret its own rules and because uniformity in interpreting personnel policies will help all city personnel know what to expect. The court of appeals also held that the police officers had not shown any exceptions to the exhaustion requirement such as irreparable harm. The court affirmed the trial court’s abatement of the officers’ claims.

Councilmember Compensation: City of Corpus Christi v. Joe O’Brien, et al., No. 13-08-00267-CV (Tex. App. – Corpus Christi-Edinburg, Feb. 5, 2009) (mem. op.). In this case, the trial court granted a permanent injunction barring Corpus Christi city councilmembers from participating in the city’s health insurance.

The city has group health insurance for its employees. Under a city ordinance, the city councilmembers are also allowed to participate in the city’s health insurance. The charter limits the compensation for the members of the governing body to $6,000 per year for councilmembers and $9,000 per year for the mayor. A citizen sued the city, arguing that the city councilmembers could not be on the health plan because it constituted compensation and caused the councilmembers’ compensation to rise above the charter limit. The city argued that the charter did not forbid the councilmembers from participating in the city’s health insurance and that Chapter 172 of the Local Government Code allows councilmembers to be on the city’s health insurance.

The court of appeals reversed the trial court’s permanent injunction, holding that the ordinance allowing health benefits was not inconsistent with the charter provisions granting the councilmembers compensation. The court also held that Chapter 172 provides additional support allowing councilmembers to receive health benefits.

Governmental Immunity: City of Alton, et al. v. Sharyland Water Supply Corp., No. 13-06-00038 (Tex. App. — Corpus Christi, Feb. 5, 2009) (op. on rehearing). The court of appeals denied the motions for rehearing, but issued a new opinion making non-dispositive clarifications to its November 5, 2008, opinion. A detailed summary of that opinion can be found in the December 2008 TCAA Newsletter.


As a supplement to TCAA News, please check the TML Legislative Update Newsletter and TML’s Connect News Service .
Please contact Scott Houston, TCAA General Counsel, with your news, questions, and/or comments by e-mail at legalgovt@tml.org or by phone at 512-231-7400.
TCAA members may use the information herein for any purpose. No other person may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas City Attorneys Association.
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