"Charting Fulshear's Future"

Future Charting

Fulshear’s WRITTEN BY DANIEL McJUNKIN, PHOTOGRAPHY BY RHONDA KUYKENDALL

Fulshear Mayor, Tommy Kuykendall answers important questions about adopting a “Home Rule Charter” for this growing city.

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arring any unforeseen procedural delays, the City of Fulshear is currently set to hold an election in May 2016, in which voters will be asked to make one of the most important decisions in the life of their city to date. They will be asked to consider and decide whether it is time to change its form of government from a Type “A” General Law City to a Home Rule City.

Growth and the Prospect of More Growth Fulshear is a city in the midst of a remarkable transition. Its population, now hovering around 8000, has already grown more than onethousand percent (ten-fold) since the year 2000. Fulshear Mayor, Tommy Kuykendall, says that Fulshear has found itself limited by what the State of Texas allows small towns to do. Adding fuel to the fire, Fulshear is expecting to grow another one-thousand percent (another ten-fold) to an anticipated population that could reach up to 80,000 residents over the next two decades. Consequently, Fulshear finds itself in a unique leadership position in a region that is anticipated to ultimately welcome as many as 200,000 residents and possibly more. Mayor Tommy Kuykendall explains that, if passed by voters, adopting a Home Rule Charter would allow Fulshear city government to better accommodate current growth as well as the future needs of the city.

Agree or disagree, there will certainly be opportunities for discussion and debate among voters regarding whether to adopt a home rule charter. Such consideration and dialogue is extremely important because this could be a pivotal moment for Fulshear.

Ultimately, the outcome of the currently anticipated election can be expected to have a considerable impact on the way that future Fulshear citizens manage their civic and political destiny.

As the publisher of Fulshear Magazine, I thought it would be good to seek out the best resource available as to whether and why it may be time for the City of Fulshear to make such a change. My “Q&A” on the matter asks some important questions of Fulshear’s highest elected official, Mayor Tommy Kuykendall.

LOCAL GOVERNMENT BACKGROUND

What types of municipal government does the State of Texas allow?

“In Texas there are two forms of municipal government – Home Rule and General Law. A city with a population greater than 5,000 and that has adopted a Home Rule Charter is a Home Rule City.

General Law cities are usually smaller than 5,000 in population and operate under the Local Government Code or “General Laws” of the State of Texas. General Law cities can be classified as Type A, B, or C and may have an aldermanic or commission governing body. All cities begin under the General Law form of municipal government and, following growth beyond 5,000 residents, may choose to pursue conversion to Home Rule status through an election of the residents.”

Why does the state allow for such varied forms of municipal government and for a city to change from one form to another?

“When groups of people organize into a city, they are looking to congregate together for a few fundamental reasons. First, a group of people can more effectively provide for the safety and security of their family, homes, and belongings. Second, parents can provide better educational opportunities and training for their children. Third, the group may have common religious beliefs and practices and want to attend the same church. Lastly, human nature shows a person or family finds comfort and assurance in congregating with those who are facing similar life events – birthing and raising children, dealing with family illnesses, struggling with aging parents, etc.

In my opinion, before a city is ready to take off its governance “training wheels,” it needs to operate under a more limited structure that is under the general laws of the state. When a General Law City forms, it initially does not have expertise in city operations, record keeping, law enforcement, or ordinance creation and enforcement. Nor does a new city have the resources to hire professional experts in all these areas to overcome this lack of expertise. Also, when you are a new, small city, the mayor has all the power and control, which offers limited opportunities for checks and balances. Unfortunately, you can find many stories where small towns get off track.

However, cities that grow from a few hundred to over 5,000 gain experience, expertise, personnel, and gain resources to operate efficiently and handle all the decisions cities need to make. The state believes that a city, after exceeding 5,000 in population and successfully governing itself through that growth, is ready to have more privileges and authority to control its own destiny.”

Fulshear was founded in 1890. When and why did Fulshear officially become a city?

“In 1858, the first statute was passed by the Texas legislature, allowing incorporation under the General Laws of Texas. In 1912, Texas voters passed the Home Rule Amendment giving cities with over 5,000 inhabitants the power to adopt their own charter after an election, thereby giving them the power of selfgovernment.

In 1888, Fulshear embraced the San Antonio and Aransas Pass Railroad through the heart of town, which encouraged people to move to the city that centered around Churchill Fulshear’s plantation. Fulshear fluctuated in population from 1890 to the 1970s. In order for the city to provide for the health, safety, and protection of its citizens, incorporation proved to be the most viable way to accomplish that. Also, as the City of Houston began to expand its territorial boundaries westward, Fulshear saw incorporation as a way to provide protection from annexation by Houston. Fulshear residents believed they could best provide, plan, and govern themselves locally.”

When Fulshear became a city, what type of city was formed?

“Fulshear is a Type “A” General Law City today. Most cities are formed as Type “B” General Law cities until their population reaches 600, at which time they are able to convert to the Type “A” structure. Fulshear chose to function under an aldermanic form of government with a Type “A” General Law City structure today.”

How does a city’s type of government impact its ability to operate, develop, and grow?

“Cities are formed for the purpose of managing the needs of people who live and work in close quarters. Cities provide basic services—streets, law enforcement, garbage pickup, and utilities. They also enact and enforce ordinances to protect their citizens and foster a better city environment. City government in Texas, as in most of the United States, was founded on, and continues to evolve from, the premise that local communities know best how to run their local affairs.

In an effort to provide for the safety of residents and the sustainable growth of a community, a Type “A” General Law City has limitations on what actions the Mayor and City Council can take. Educating the electorate and community on those limitations will clearly show why conversion to Home Rule is essential. As a reminder, a Home Rule City may do anything authorized by its charter that is not specifically prohibited or preempted by the Texas Constitution or state or federal law.

Alternatively, a General Law City, having no charter, may only exercise those powers that are specifically granted or implied by statute. Let me point out a few examples that demonstrate why moving to the Home Rule structure will provide more accountability to the voters from the Mayor and City Council.

1. Sex offender residency restrictions – A recent Texas Attorney General opinion that says General Law cities, such as Fulshear, do not have the authority to place distance restrictions on sex offenders. Home Rule cities have this authority.

2. Term limits – General Law cities (Fulshear) have no authority to place term limits on the mayor or city council positions.

Home Rule cities have this authority.

3. Annexation – General Law cities (Fulshear) have no unilateral authority to annex land into their ETJ or city limits. Fulshear is fortunate that many landowners petitioned into our ETJ. However, if a neighboring Home Rule City, i.e. City of Houston, embarked on additional annexation, Fulshear would be powerless to protect itself. Home Rule cities have this authority.

4. Initiative and referendum – General Law cities (Fulshear) do not have the the authority to place initiatives (ordinances, major decisions, city direction and vision, etc.) on a ballot to require the adoption of that issue by ordinance. Also, voters in General Law cities do not have the right or privilege to organize a petition and place a referendum on the ballot if the voters disagree with the direction of the Mayor and City Council.

Home Rule cities may have this authority, if provided for in their charter.

5. Recall – General Law cities (Fulshear) do not have the authority to organize a petition to recall a council member that acted contrary to the will of the community. If the Mayor and City Council pass ordinances against the will of the voters, the voters have no recourse. Home Rule cities may have this authority, if provided for in their charter.”

OVERVIEW In a nutshell, what does the term “Home Rule Charter” mean?

“Charter means the document by which an entity, i.e. a city, is created and its rights and privileges are defined. It is a city’s constitution. Home Rule Charter means the citizens of a city have developed a document outlining the type of government, requirements, roles, responsibilities, and powers they believe to be best governed under as a community.”

What are the “rules” for becoming a Home Rule City?

“Cities begin their governance under General Law status. But, when a city reaches a population of 5,000, it may choose to explore development of a Home Rule Charter. The Home Rule Charter process can be initiated by City Council or by the voters. City Council may appoint a Home Rule Charter

commission, or ten percent of the city’s qualified voters may prompt the City Council to appoint a charter commission.“

Tell me about when, how, and why Fulshear began considering adopting a “Home Rule Charter” in the first place.

“When I was elected to office in 2010, the census documented Fulshear’s population as 1,134. The next year we saw an increase in development plans and an ever increasing pace in home sales. At the same time, I felt our ability to provide the best protections for our rapidly growing city was limited under the Type “A” General Law structure.”

Who writes the charter?

“The city selects a panel of citizens to serve as the Home Rule Charter Commission. The Commission writes the charter for presentation to the voters. However, the Commission members are typical residents of the city and not experts in Home Rule charters. To aid them, the city provides a legal team to review the components of a charter and explain the tenants that may be considered for inclusion. The legal team also provides resource materials, sample charters, charter statistics on similar cities, and explains the pros and cons of each component. The Commission members use their familiarity of the city and future growth and needs, along with legal counsel advice, to make decisions on each item to be included in the charter. Following voting on all the charter provisions, the legal staff will formulate all the decisions into the written Home Rule Charter for review by the Commission.”

HOME RULE CHARTER COMMISSION Bill Archer, Carolyn Randle, Kent Pool, C.J. McDaniel (Chairman), Randy Stacy, Polly Royer, Ken Knapp and James Molina Not Pictured: Erma Beal, Larry Beustring, John Dowdall, Cherryl Finney, and Gene Morgan

THE COMMISSION Tell me about the city’s Home Rule Charter Commission and how it was established.

“The City Council voted at the March 17, 2015 Council meeting to appoint the 15-member Home Rule Charter Commission.”

How were members of the Home Rule Charter Commission chosen?

“The City developed an application process for serving on boards and commissions, including the Home Rule Charter Commission. The Mayor and City Council members are not allowed to serve on the charter commission. Applications were solicited for about two years during the planning process.

Following a review of the submitted applications, a group of 15 members were selected to be presented to the City Council for appointment to the Commission. Fulshear is fortunate to have a group of residents who are interested in transitioning from General Law to Home Rule. A variety of factors were taken under consideration before the recommendation was made. When the Commission members were appointed, they represented all areas of the city – new master planned developments, Old Town, and Bois D’Arc. The initial Commission was comprised of seven members from Cross Creek Ranch, seven members from Bois D’ Arc and downtown, and one from Fulbrook on Fulshear Creek. Along with having residents representing all areas of the city, we also obtained residents who are local business owners, chamber members, former City Council members, and former Planning Commission members.

The broad cross-section of people brought a great balance to the discussion, while providing a historic perspective that many new residents are not aware of. It was difficult to choose from so many qualified potential candidates but, in the end, we have a commission dedicated to the best interest of the City of Fulshear.”

What instructions were the members given by the Mayor?

“As Mayor, I have attended numerous Commission meetings to observe their work.

In sitting and listening to their discussions, it is difficult not speaking out when, as Mayor, you are normally leading the city discussions.

However, I made it a point to address the Home Rule Charter Commission at their first meeting and to set a clear agenda and tone from my perspective. My statement to the Commission was that they are assembled to determine how the city will be best served in governance structure moving forward. As current Mayor of Fulshear, I have significant responsibilities and powers. I emphasized that their decisions should be made, regardless of how they think I might feel or how any other individual City Council member might feel. I charged them to make decisions for Fulshear’s future governance, regardless of who is in office.

At the November 22, 2015 City Council meeting, the Home Rule Charter Commission presented its work to date on the Charter. City Council was provided an opportunity for input and discussion. The Commission received a few comments from City Council. Following discussion at a subsequent Commission meeting, the Commission made a few adjustments based on the City Council feedback.”

When did they begin their work?

“The Home Rule Charter Commission gathered and held their organizational meeting on June 25, 2015.”

How have the Commission members worked to accomplish their objective?

“The Home Rule Charter Commission has been extremely thoughtful and conscientious in their discussions of issues to be included in the charter.

Not all of the issues received a unanimous vote, but they have made great decisions based on Fulshear residents’ needs and desires while looking at models from other successful cities as examples.”

Was the city involved in the Commission’s meetings or in how the members have done their work?

“The Mayor and City Council were not allowed to sit on the Home Rule Charter Commission. However, the Charter Commission made a presentation to the Mayor and City Council on November 17, 2015. The presentation provided city leaders with the progress and decisions made to date, and allowed an opportunity for the Commission to receive their feedback.”

When was the Home Rule Charter Commission’s work completed?

“The Home Rule Charter Commission worked diligently to present an agreedupon Charter to the City Council. The Commission approved a final document and sent it to City Council on December 16, 2015.”

Did the public provide input regarding the Home Rule Charter Commission’s work?

“The Home Rule Charter Commission conducted all its meetings under the Texas Open Meetings Act, just as City Council meetings are conducted. Meeting notices and agendas were developed and advertised at least 72 hours prior to any meeting. Only those agenda items listed were able to be discussed at each meeting. The Commission meetings also provided a public comments portion at the beginning of each meeting and were open to receive written comments at any time. Following each meeting, minutes were drafted, approved, and published to the city’s website.”

Chairman C.J. McDaniel & Mayor Tommy Kuykendall

THE CHARTER What are the pro’s and con’s of adopting a “Home Rule Charter”?

“This is a really tough question, depending on the viewpoint you analyze it from.

While I can take pride in successfully leading the City of Fulshear under a strong Mayor form of government for the past 6 years, I take the viewpoint on what would be best for Fulshear in 5, 10, and even 20 years from now. The Home Rule Charter takes nearly a year to develop and approve and then 5 years to fully implement. This vision will allow Fulshear to be prepared in future years. Some of the pros and cons may be noted as follows:

Pros

• Elected official accountability by voters with initiative, referendum, and recall.

• Stronger sex offender residency ordinances, not subject to lawsuits.

• Professional organization managed with City Manager.

• Removal of politics from management of employees and day to day operations

Cons

• Change is not always easy or comfortable.

• Relinquishing power from a strong-Mayor to City Manager and City Council when things are going well is not easy. However, seeing the longer game makes it the right thing to do.

• Those who want to keep the status quo will view all the pros listed as cons.”

What are the major components or issues that are included in a Home Rule Charter?

• Form of government – Mayor/Council; Manager/Council • Number of Council Members and Single-Member Districts or At-Large Positions • Powers and duties of Mayor, City Council and City Manager • How boards and commissions are appointed • Term Limit Provisions • Initiative, referendum and recall processes”

Currently, the City Council is made up of a Mayor and five “At-Large” council members. Under a Home Rule Charter, how would that change?

“Provisions are included that would expand the number of Council members from 5 to 7. Five members would serve under single member residency districts and 2 would serve at-large. The Mayor would still be elected at-large. Provision has been made to allow the City Council by ordinance to further restrict the at-large positions and create 2 at-large super districts to give the City Council flexibility to act if the Charter were to be challenged by the Department of Justice, given the outcome of the Evenwell Voting Rights Case currently before the U. S. Supreme Court.”

What does “At-Large” mean?

“At-Large means that the position would be elected by all the eligible voters within the city limits of Fulshear at the time of the election.“ Would becoming a Home Rule City help Fulshear grow? In what way?

“Fulshear has an unusually large Extra-Terratorial Jurisdiction (ETJ) due to landowners petitioning their property into our jurisdiction. Most of the property outside Fulshear resides in other cities’ jurisdictions. However, conversion to Home Rule status would allow the City of Fulshear to expand our ETJ and annex ETJ areas into our city limits to accomplish the city’s goals and objectives. To accomplish those goals, the city would be required to adopt an annexation plan three years preceding any action, so that the public and landowners were aware of the future annexations. Petitions by landowners for annexation would still be accepted if it benefitted the city and City Council approved the petition.”

IMPACT TO THE COMMUNITY How would voters’ representation be effected or protected?

“The primary goal of the Home Rule Charter is to preserve and protect the fundamental concept of one-person-one-vote. Great consideration will be given to fairly draw district lines, so as not to alienate any areas or groups or dilute their voting rights. This is expected to be done after the May elction if the Home Rule Charter is adopted. It will be incumbent on Fulshear citizens to remain involved in the drawing of the district boundaries and to express their thoughts to me and to the City Council. The Charter does provide for greater voter representation through the initiative, referendum, and recall processes discussed earlier.”

With voting based on one-person-one-vote, how would less-densely-populated areas be represented fairly as compared with more densely populated areas?

“Currently, voter districts are based on population. Therefore, less densely populated areas will likely be grouped together with other more densely populated areas. The discussion below on how voting districts are determined further explains these concepts and the current legal challenges being made to the U.S. Supreme Court.”

How would voting districts be determined?

“Voting district boundaries are determined by expert consultants that have GIS databases to assess the makeup of each district – population, eligible voters, etc. Some residents believe the city can simply be divided up geographically.

However, the Voting Rights Act and Department of Justice provide guidelines for establishing voter districts. Historically, voter districts have been determined based on population, and the Department of Justice has further imposed specific ethnicity requirements in some jurisdictions. With the the influx of employees and workers from abroad, I.e. residents not eligible to vote, the U.S. Supreme Court heard the Evenwell Voting Rights case on December 7, 2015.

The Court will rule before July 2016, and at the heart of the argument is oneperson-one-vote. The fundamental question under consideration is whether voting districts should be drawn based upon population or upon eligible voters.

In some cities, the makeup of a district could have a significant population who are not eligible to vote, whether those be children or expatriates.”

Would voting districts change over time as the city grows?

“Generally, voting districts are reassessed following the Population and Housing Census every 10 years. In Fulshear’s case, district lines would be drawn in 2016 and then redrawn following the 2020 census. With Fulshear’s rapid growth, this 4-year reassessment may prove timely. If Fulshear continues it’s rapid growth, the boundaries could be reassessed when a significant imbalance within the districts occur, but no more than 10 years would pass before reassessment.”

How would adopting a Home Rule Charter change city departments or the services they provide?

“The City Manager and City Attorney would be hired by a super-majority (2/3) approval vote of City Council. The Police Chief, City Secretary, and Chief

Financial Officer will be recommended by the City Manager and approved by a majority of the City Council. City Council will appoint the Municipal Court Judge. The Mayor will appoint members of all boards and commissions with the approval of City Council.

One of the major tenants accomplished through a Home Rule Charter is removing the majority of city employees from the political realm. One problem with small town politics is when city employees get politically involved and may be asked to take sides on issues. The result is seldom beneficial for the employee when election results go the other way. Fulshear has seen this happen before. In my estimation, the residents of Fulshear need a professional workforce to take care of their needs without any interference of politics.

As a result, city departments would be more centrally focused on the services to the residents and businesses, and these departments would have the opportunity to serve them much more effectively.”

How would the change impact local taxes?

“The city property taxes would not be affected, as a general rule. Costs would occur for redrawing district boundaries, charter revisions and elections, and when citizens use the initiative, referendum, and recall provisions.

However, I believe that those costs would be worth it if any of these actions need to be taken.”

What are the next steps regarding adopting a Home Rule Charter?

“The Charter Commission acted on December 16, 2015 and presented a completed City of Fulshear Home Rule Charter to City Council.

City Council has until February 19 to call a mandatory election, which would place the Charter on the May 2016 ballot for voter consideration. In the interim, an independent legal review of the document has been authorized by City Council. There were some concerns from select City Council members, and an independent legal review was proposed as a mechanism to allay those fears, insure trust and buy-in from City Council, and insure the Charter document presented to voters had no material flaws. We received the legal review on December 28, 2015, and City Council reviewed those comments in a workshop on January 5, 2015.

With no substantive City Council comments coming forth, the Home Rule Charter Commission elected not to meet again. The Charter document agreed to on December 16, 2015 will be presented to the voters with no further changes. Prior to the election, a copy of the Charter will be mailed to every registered voter within Fulshear city limits, as prescribed by State Law.”

MAKING THE CHANGE Considering that Fulshear has grown just fine with its current form of government, why change?

“General Law cities are given very limited powers to shape and govern their futures. I have always viewed General Law status as beginner or “training wheel” status. When a city government initially forms, at least three things are lacking. The knowledge, experience, and expertise to govern does not exist within the City organization, but after some time and

period of growth the city develops the ability and has expertise to handle more in-depth issues. Also, as more people move to an area, there are more needs and expectations to meet. Home Rule structure provides a better opportunity to respond to issues of the day.”

Why make the decision now? Can’t the city wait until later?

“Much of the territory under Fulshear’s jurisdiction already has plans for development, and our population is rising at a rapid rate. We would like the city to plan and respond in a proactive and planned manner, rather than being reactionary.

We want to be able to maintain and strengthen sex offender residency restrictions for our citizens and children before an incident creates a reactionary need where we all lose. In fact, a smaller General Law City in Fort Bend County was sued the last week of 2015 for its sex offender ordinance, claiming it is unconstitutional for a General Law City to do so.

This city is surrounded by Home Rule cities and could force sex offenders to their area. Why are their kids any less important than those in a neighboring city?

We need to consider the benefits of transitioning to Home Rule status now.”

What other area cities have made the transition to Home Rule Charter?

“Most cities in Fort Bend County that have grown beyond the 5,000 population level have transitioned to a Home Rule form of government. Missouri City, Sugar Land, Stafford, Katy, Rosenberg and, most recently in 2013, Richmond.”

Does the City Council decide on whether to adopt a Home Rule Charter or is it put up for a popular vote? How would the process work?

“Once the Home Rule Charter Commission completes its work and sends the Charter document to City Council, City Council has an obligation and responsibility to place the Charter on the ballot, so that voters can decide whether to adopt the Home Rule Charter or remain under General Law status.

We had some misunderstanding with this concept that City Council could veto the completed Charter document presented to them. Texas law provides that the completed Charter be submitted to the voters in its entirety. Parts or sections cannot be voted on separately, but must be taken as a complete document for voter consideration.”

If the voters adopt the Home Rule Charter, when would it become effective?

“If the voters approve the Charter document on May 7, 2016, it would become effective immediately. However, all provisions are not able to be implemented instantaneously. The transition to five districts and two at-large positions from our five at-large positions will take until the May 2020 election cycle. Existing Council member terms cannot be shortened or eliminated.”

If adopted, how long would Fulshear remain a Home Rule City?

“Once a city elects to be governed under a Home Rule Charter, the city will continue under Home Rule Charter in perpetuity. Even cities that have exceeded the 5,000 population level and transitioned to Home Rule, but then later dropped below 5,000 residents, Home Rule governance would remain.”

Once a Home Rule Charter is adopted, can it be changed or amended as the city grows and evolves?

“Cities have to be able to adapt to changing conditions and the Home Rule Charter allows for revisions in two ways. City Council will be mandated by the Charter to appoint a Charter Review Commission every five years to review the Charter. Also, citizens can force Charter amendments through voter-initiated Charter amendments. However, the Charter itself cannot be revised more than once every two years under current Texas law.”

How might adopting the Home Rule Charter effect Fulshear’s prospects in the future?

“It will improve Fulshear’s prospects in the future. Housing development, retail development, and commercial development want a strong, stable, and predictable government, in order to miminmize the risk those developers take in making their decisions to develop here. Converting to Home Rule status updates the structure of a city government that was set in the 1970s and is limited. The new structure is stable, flexible, and has checks and balances that allow for beneficial development in Fulshear.

CONCLUSION Where can people find out more about Fulshear’s work regarding the Home Rule Charter process or about Texas’ laws regarding municipal government?

“The City of Fulshear website has the proposed Home Rule Charter dated December 15, 2015 and may be found at: http://www.fulsheartexas.gov/Charter_Commission___Proposed_Draft_of_ Home_Rule_Charter__as_of__121515_.pdf The Texas Municipal League (TML) provides numerous resources relating to City government and the following may provide useful information: Mayor and Council Handbook Chapter 1: http://www.tml.org/Handbook-M&C/Chapter1.pdf Alphabet Soup: Types of Texas Cities: http://www.tml.org/p/docs/typesofcities.pdf Mayor Tommy Kuykendall would welcome the opportunity to discuss the Home Rule Charter and any other City issues with you individually or with your neighborhood group to help answer your questions.

Please email him at tkuykendall@fulsheartexas.gov to schedule an appointment.”

Do you have any final thoughts regarding Fulshear voters’ decision whether to adopt a Home Rule Charter?

“While many Home Rule cities exist in Texas, city charters are not crafted and adopted every day. Here is a list of cities in Fort Bend County that have adopted a home rule charter along with the year of their adoption: • Missouri City 1974 • Katy 1981 • Rosenberg 1985 • Sugar Land 1999 • Stafford 2004 • Richmond 2013 Therefore, the Home Rule Charter has to be tailored specifically to the City of Fulshear’s own unique circumstances. While I may not agree with every tenant of the Home Rule Charter presented, the process followed was conducted by a diverse cross-section of Fulshear residents, conducted deliberatively, and conducted independently of the political process.

I would ask all Fulshear voters to read and study the Home Rule Charter presented and to vote on May 7, 2016 .

The Fulshear Charter Commission has developed a Home Rule Charter for the citizens of Fulshear and with their future in mind.” d