City Attorney Claims Council Can Ignore Citizen Referendum

DUNCANVILLE, TX – This newspaper has received an email sent by Duncanville City Councilman At-Large Patrick Harvey. The email contained a memorandum by City Manager Kevin Hugman in response to a previous article in this newspaper about the April 7, 2015 City Council approval of the Wintergreen Road project after that project had been voted down by almost 60% to 40% in a 2013 citizen referendum.
In the memorandum, addressed to the Mayor and City Council, City Manager Hugman wrote, “A recent news article questioned the legality of these actions by the City Council and cited a November 5, 2013 voter referendum that defeated a ballot proposition to execute a Project Specific Agreement with Dallas County for the Wintergreen Road project.”
Mr. Hugman wrote that when City Attorney Robert Hager was asked about the legality of the Council’s decision to overrule the citizen referendum and approve the Wintergreen Road project, City Attorney Hager stated that the November 5, 2013 citizen referendum was “non-binding” and the City Council could ignore it.
On April 7, 2015, that is just what the Council did when it voted 5 to 0 to approve the Wintergreen Road project.
In his memorandum, Mr. Hugman admitted that “the news article correctly refers to the City Charter, Section 9.14 ‘Referendum’” but then Mr. Hugman goes on to write that the article left out “the portion of the City Charter language that states referendum election may be requested ‘with the exception of ordinances or resolutions appropriating money or levying taxes.’”
However, the Wintergreen Road Project that the 2013 citizen referendum voted down did not appropriate any money or levy any taxes, and therefore the result of that citizen referendum is binding upon the Council.
Here is the exact language of the November 5, 2013 citizen referendum that was voted down by the citizens of Duncanville:
Adoption of Resolution No. 2013-062402, to execute the Project Specific Agreement to the Master Agreement Governing Major Capital Transportation Improvements Projects with Dallas County for purpose of constructing Transportation improvements to the Wintergreen Road MCIP Project 47302.
The Wintergreen Road project was first approved by the Duncanville City Council at a Special Meeting on Monday, June 24, 2013 when the Council voted to approve Agenda Item 2:
Agenda Item 2: Consider approval of Resolution No. 2013-062402 authorizing the Mayor to enter into a Project Specific Agreement between Dallas County and the City of Duncanville, Texas, for the purpose of constructing transportation improvements to the Wintergreen Road MCIP Project 47302, pursuant to the Dallas County Master Agreement Governing Major Capital Transportation Improvement Projects, and providing an effective date.
Note that the resolution number and the project number are the same for Agenda Item 2 and the citizen referendum.
The “Background of Issue” section for Agenda Item 2 on June 24, 2013 stated the following:
At the District Town Hall meeting conducted on February 28, 2013, Dallas County obligated itself to cover the City of Duncanville’s share of the project cost.
The “Financial Impact” section for Agenda Item 2 stated:

There would be no financial impact to the City for this project as currently being designed. There is standard language in the Agreement, however, that should the City request any unique improvement or amenity solely for the benefit of the City of Duncanville, then that cost shall be borne 100% by the City of Duncanville. Typical examples of this would be water main or sanitary sewer main improvements. At this time, no such additional requests are envisioned or anticipated.

Therefore, the Wintergreen Road Project 47302 that was approved by the Duncanville City Council on June 24, 2013 and then defeated by a citizen referendum on November 5, 2013 did not appropriate any money or levy any taxes.
The part of City Charter Section 9.14 used by City Attorney Robert Hager and City Manager Kevin Hugman to justify the Council’s ignoring the result of that November 5, 2013 citizens referendum — “with the exception of ordinances or resolutions appropriating money or levying taxes” — does not apply.

What does apply is this part of Section 9.14:

Pending the holding of such election, such ordinance or resolution shall be suspended from taking effect and shall not later take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.

The result of a lawful citizen referendum cannot be overruled by the City Council; it can only be overruled by another citizen referendum.
On April 7, 2015, five members of the Duncanville City Council — Patrick Harvey (At-Large), Cliff Boyd (District 1), Steven Rutherford (District 2), Stan Smith (District 3), and Mayor David Green — illegally overruled the result of the 2013 citizen referendum when they approved the Wintergreen Road Project Number 47302.
When members of the City Council refuse to abide by the vote of the citizens after a citizen referendum, the only options available to the citizens are to sue the Council or to vote them out of office.