MIN CC 05/25/2004CITY COUNCIL MEETING OF MAY 25, 2004 BOOK "T"
126
LOCATED AT 1212 AVENUE M IN THE CITY OF HUNTSVILLE, COUNTY OF WALKER, TEXAS AT 6:00 P.M.
The Council met in a regular session with the following members present:
COUNCILMEMBERS:
OFFICERS:
Jack Choate
Steed Smith
Kevin Evans, City Manager
Gary Crawford
Bob Tavenner
Danna Welter, City Secretary
Vance Howard
Jim Willett
Thomas Leeper, City Attorney
Judy Kayse
Mac Woodward
1. Considerand take action with respect to Mayor Karl Davidson's letter of resignation.
ABSENT: Karl Davidson
City Attorney Thomas A. Leeper submitted the following letter to the Council:
CALL TO ORDER [6:00 p.m.]
Mayor Pro Tem Howard called the regular session to order.
PLEDGE OF ALLEGIANCE to US AND TEXAS FLAGS, INVOCATION
Reverend Karl Choate led the invocation.
PUBLIC COMMENTS
1. Darrell Hall. Mr. Hall spoke in opposition to Councilmember Howard possibly being named Mayor, askingI,
Councilmember Howard if he had time to devote to the job.
2. Nancy Franklin. Ms. Franklin congratulated Councilmembers Kayse and Choate for their successful campaigns; she
stated the present political climate in the city is completely unreasonable and cannot continue if the city is to prosper, and
she encouraged the Mayor to do the right thing and resign immediately.
MAYOR / COUNCILMEMBER / CITY MANAGER REPORT
1. Considerand take action with respect to Mayor Karl Davidson's letter of resignation.
'
City Attorney Thomas A. Leeper submitted the following letter to the Council:
On May 19, 2004, Mayor Davidson delivered his written, signed letter of resignation to the City of Huntsville. On
May 20, 2004, Mayor Davidson delivered a written, signed letter to the City of Huntsville purporting to withdraw his previous
resignation. These circumstances present two primary questions: 1) may an elected official withdraw the official's '...
resignation after it has been delivered to the authority for which that official serves but priorto its acceptance ?, and 2) is
Mayor Davidson's May 20 letter sufficient to withdraw his resignation? Based upon my research, the first question is not "
a settled issue of law, and the second question involves a fact issue; therefore both must be determined by Council.
In my opinion, the cautious answer to both questions would be
1) May an elected official withdraw the official's resignation after it has been delivered to the authority forwhich that
official serves but prior to its acceptance?
An analysis of the first question reveals a threshold issue as to whether the Election Code would apply. Arguably it
would not apply because under the specific circumstances which exist here, there will not be a requirement to have an
election to fill the vacancy. By operation of the City's Charter, when less than one year remains on the unexpired term, j
the Mayor Pro Tern is appointed Mayor, and no election is triggered. In the general application of our Charter, however, the
Election Code is implicated: the determination of the date of a resignation and the resignation's finality would control
whether a special election would need to be called or if an appointment would occur by operation of the Charter. I find no
precedent to guide us as to whether this analysis would apply. Some guidance may be derived from Attorney General
Opinion DM406 which declares the common law rule "has been modified with respect to elected officials in this state by... the
Election Code." In that opinion, the vacancy created by a resigning school board member was filled by appointment of the
board until the next election.
If the Election Code is not triggered, the common law applies. Under common law of this State, a public officers
resignation is not effective until it has been accepted by the appropriate authority. Sawyer v. City of San Antonio, 234
S.W.2d 398 (Tex. 1950). The officer may withdraw it prior to acceptance.
If the Election Code does apply, the answer is more difficult. In Texas State Democratic Executive Committee v.
Rains, 756 S. W.2d 306 (Tex. 1988), our Supreme Court held regarding Election Code §201.001 (a):
Under the plain language of subsection (a), there are only three requirements for a resignation "to be effective " — '..
that it be written, signed and delivered.
However, Rains did not specifically address the issue of the withdrawal of a resignation. Further, after the Rains
opinion, the Legislature amended sections 201.001 and 201.023.
An Attorney General's Opinion rendered afterthe Legislature's amendments, Opinion No. DM<106, addressed the
t
question: "Whether an independent school board member who resigns may withdraw the resignation before his or her
successor qualifies for office." In the situation thereat issue, the board had accepted a members resignation, but no
successor had yet been selected. In its discussion, the Attorney General's Office concluded:
CITY COUNCIL MEETING OF MAY 25 2004 BOOK "T" 127
that an independent school district board member's written, signed resignation that has been delivered to a
school board is effective upon its acceptance by the school board or on the eighth day after its receipt .... whichever ii
occurs earlier. The school board member may withdraw the resignation before it becomes effective. Id.
The AG Opinion discussed in a prior footnote the above mentioned changes in the two Election Code provisions
and that a legislative bill analysis states:
... these amendments were made in response to the [Rains] courts holding .... and suggests that the legislature 6
intended, at least in part, to create a period between delivery of a resignation and its acceptance during which the
resigning official would be able to withdraw the resignation. Id., at n.1 (emphasis added).
In considering the above, note that Supreme Court opinions are controlling authority. Attorney General Opinion are
persuasive authority and, while not controlling, are entitled to great weight unless clearly wrong. The Attorney General's jj
opinion is instructive in addressing an open issue of law and may well be a good indicator of what a court might decide.
However, Attorney General Opinion DM-406 is weak in that it fails to distinguish that the Code provision regarding the
date of an authority's accepting a resignation or eight days after its receipt is for the purpose of determining the date a
varancyoccurs. Election Code §201.023'. It is secfion 201.001 (a) which deals with when a resignation is effective, and
this section's first sentence remains unchanged from the time of the Rains analysis: "To be effective, a public officers
resignation ... must be in writing and signed by the officer ... and delivered to the appropriate authority ...... The
Legislature amended the second sentence of 201.001, changing "A resignation must be accepted bythat authority" to
"The authority may not refuse to accept a resignation." A valid argument may be made that the law stated in Rains
remains current law as to whether a resignation is effective upon delivery.
2) Is Mayor Davidson's May 20 letter sufficient to withdraw his resignation?
Council must decide a fact issue as to whether Mayor Davidson's May 20 letter is an unqualified withdrawal of his
resignation, an amendment to the May 19 resignation letter ora second resignation. Ambiguities arise in the May 20
letter due to the second paragraph. The letter seems to continue to express Mayor Davidson's intention to resign, and it :1
is stating a different time when Mayor Davidson intends the resignation to occur (that is, to occur on a date to be
determined by completion of the runoff election, new council swearing in and new mayor pro tem selection rather than l�
May31,2004). The final paragraph states the Mayor does"... withdraw my previously submitted resignation." Giventhat
the letter withdraws "my previously submitted resignation" and expresses the later point in time until which he plans to
serve, it is also possible the May 20 letter is a second resignation letter replacing the May 19 resignation.
Notwithstanding the ambiguity of the overall letter, the cautious approach is to consider the language of the last sentence
and ignore the ambiguous language, thus construing the letter as an intention to withdraw the resignation.
Conclusion
Considering the last sentence of the May 20 letter, Mayor Davidson is seeking to withdraw his resignation.
The status of the law as to withdrawal of an elected official's resignation is unclear. Council must decide whether
the May 19 resignation can be withdrawn or if it was "effective" when delivered to the City. While arguments for either
decision have merit, the cautious action would be to allow the withdrawal. However, either decision may lead to litigation,
and the outcome of such litigation is unclear.
An option for Council is to simply take no action on the May 19 letter and make no interpretation of the May 20
letter. Mayor Davidson would remain in the office of Mayor. At the future date described by the May 20 letter, Mayor
Davidson may then deliver a new resignation letter to Council.
ELECTION MATTERS
1 Consider and take action with respectto Ordinance 2004-05-25.1, canvassingthe regularelection held within the City of
Huntsville on May 15, 2004, for the purpose of electing At-Large Councilmembers, Positions One, Two, Three and Four.
2. Official Returns for the City of Huntsville City Officers Election held Saturday, May 15, 2004 for the purpose of electing
At-Large Councilmembers, Positions One, Two, Three and Four.
Dick Lindeman
503
117
88
83
44
122
308 77 1342
Steed Smith
660
139
124
43
23
37
373 58 1457
Matt Hannes
159
60
58
24
19
32
103 30 485
' %f6eifidn$ Ear 204, 7 30"VAq
tyH 204 Ti il %till
Jim Standefer 550 138 104 84 39 127 330 93 1465
Judy Kayse 772 181 167 68 52 1 64 448 74 T1826
CITY COUNCIL MEETING OF MAY 25, 2004 BOOK "T' 128
Mickey S. Evans
568
115 113
M0
56
'r b611111
15
24
353
70
1314
Nate Grigsby
307
74 56
30
60
75
135
27
764
John Kerr Smither
32
12 7
7
0
5
14
2
79
Bill Knotts
418
120 94
61
24
97
270
70
1154
Jack K. Choate
828
181
172
69 37 59
498 75 1919
Delora King
487
134
97
79 53 130
279 87 1346
3. Administration of the Oath of Office to the re- elected members of City Council Judy Kayse, At -Large Position 2, and Jack
Choate, At -Large Position 4.
4. Considerand take action with respect to Ordinance 2004 -05 -25.2, calling a runoff election to be held within the Cityof
Huntsville on June 26, 2004, for the purpose of electing At -Large Councilmembers, Positions One and Three.
STATUTORY AGENDA
Deliver, consider and take action with respect to the Mayors Veto and Veto Message.
City Attorney Thomas A. Leeper stated this item was placed on the agenda per the charter requirement for the
City Secretary to deliver such veto to the Council. Mr. Leeper stated the Council's options were to: ask if the veto were
valid, override the veto if valid, or take no action. Councilmember Smith asked if it was a valid veto; Mr. Leeper
responded yes. Councilmember Crawford requested that it be put on the next regular agenda. City Manager Kevin
Evans asked the Council if he could include this material in some cumulative Council procedures at a future time.
Councilmember Choate moved to table this item until al future meeting: and Councilmember Crawford seconded
the motion. The motion passed 8 -0
ADJOURNMENT [6:28 p.m.]
1
Danna Welter, City Secretary
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Registered
Voters Voted
Voters
Early
Election Da v
Total
Percentage
Precinct 101
1,070
43
100
143
13%
Precinct 102
2,787
371
326
697
25%
Precinct 201
2,403
224
272
496
21%
Precinct 205
2,175
401
785
1186
55%
Precinct 206
710
98
157
255
36%
Precinct 301
2,236
120
203
323
12%
Precinct 401
2,086
82
169
251
Total
13,467
1,339
2,012
3,351
25%
3. Administration of the Oath of Office to the re- elected members of City Council Judy Kayse, At -Large Position 2, and Jack
Choate, At -Large Position 4.
4. Considerand take action with respect to Ordinance 2004 -05 -25.2, calling a runoff election to be held within the Cityof
Huntsville on June 26, 2004, for the purpose of electing At -Large Councilmembers, Positions One and Three.
STATUTORY AGENDA
Deliver, consider and take action with respect to the Mayors Veto and Veto Message.
City Attorney Thomas A. Leeper stated this item was placed on the agenda per the charter requirement for the
City Secretary to deliver such veto to the Council. Mr. Leeper stated the Council's options were to: ask if the veto were
valid, override the veto if valid, or take no action. Councilmember Smith asked if it was a valid veto; Mr. Leeper
responded yes. Councilmember Crawford requested that it be put on the next regular agenda. City Manager Kevin
Evans asked the Council if he could include this material in some cumulative Council procedures at a future time.
Councilmember Choate moved to table this item until al future meeting: and Councilmember Crawford seconded
the motion. The motion passed 8 -0
ADJOURNMENT [6:28 p.m.]
1
Danna Welter, City Secretary
�J