Friday, December 23, 2016

Shuffling the Deck for Aldermen Liaison Commissions

The deck that was stacked by the administration for the appointments of liaisons to the city commissions was shuffled in the special called meeting on Monday night.   

Please see my original post on this subject here: 

Deck is Stacked with Board Liaison Appointments

I struggled with how to report on this, but I decided to begin with the video, and end with some of my commentary, even though my commentary repeats some of Sarah Freeman's observations on the timeline.  Ms. Freeman attended the meeting, recorded it, edited the video, and referenced times in the video where various things were discussed. She also provided some commentary. I merely uploaded it and viewed it a few times. She wisely edited out discussions concerning the citizens who would serve on the commissions. According to her, one can get an audio version of the full meeting from the city. Regular BMA meetings are videoed, but this meeting was held in a conference room and official video is not available. For this reason we owe Ms. Freeman a debt of gratitude for the time and effort it took to provide the public with transparency.   

Here is the video timeline provided by her to us, as well as some commentary by her:   

This video was trimmed from one-hour in length to approximately one-half that time. The entire audio of the meeting may be obtained through a TN Open Records request submitted to the City Clerk, Michele Betty. This video was shot and the transcriptions created by Sarah Wilkerson Freeman. 

00:05 The Board of Mayor and Aldermen, staff, and City Attorney file in a take their seats in the Mayor’s Conference Room.
1:00 Mayor Mike Palazzolo calls the meeting to order. They welcome the newly elected alderman, Dean Massey.
2:04 Palazzolo states that the aldermen’s “packets” (documents reviewed for the meeting) had been made public.
3:04 Alderman Forrest Owens nominates Alderman Mary Ann Gibson for Vice Mayor. She was unanimously elected.
3:26 Alderman Liaison appointments:
3:42 David Harris, City Attorney, addresses the body on aspects of the Charter and Ordinances that apply.
5:10 City Administrator Patrick Lawton further explains Charter and Ordinance stipulations in regard to aldermen liaisons for certain commissions.
6:27 Lawton explains that the Ordinance states that Board of Zoning Appeals (BZA) alderman liaison will stay in that position for his or her term of office. Alderman Gibson had the position in 2016, but the Administration’s slate for 2017 awarded that appointment to Alderman Owens. Instead, the Ordinance seems to indicate that Ms. Gibson should continue to serve in that position through her term of office.
7:56 John Barzizza invokes a point of order. He states that last year Mr. Lawton called him and said that Alderman Gibson wanted the Economic and Development liaison position which Mr. Barzizza held. Mr. Barzizza wanted to retain that position, so Mr. Lawton asked Barzizza to relinquish his BZA positon to Ms. Gibson instead. At that point, the Ordinance was not invoked.
9:04 Ms. Gibson stated, “BZA was never even part of my conversation, so I thought that you did not want that.”
9:35 Mr. Barzizza presses to understand why the Ordinance requirements were not enforced when he was the BZA liaison. “We should have addressed it last year.”
10:11 Alderman Barzizza indicates that the episode involved Mr. Lawton’s efforts to influence the liaison appointments. Mr. Lawton: “No way, no how do I have the authority to say this alderman will have this position, this alderman will have that position.”
11:22 Barzizza: “I respectfully protest since it wasn’t brought up last year. I respectfully protest now that it happens that we just found out after, and no disrespect to you [Alderman Gibson] because it is certainly not your fault.”
11:40 David Harris restates the Ordinance.
12:23 Lawton: “Alderman Barzizza, all due respect, I was not aware of this language. When I was looking at this today, going back through my notes, making sure we’re prepared for this evening, I saw this in here, I called the City Attorney and I said, ‘Mr. Harris, help me interpret what I am looking at here because this appears to read this way.’ I was not aware of this language in this section of the Code of Ordinances regarding the BZA until this afternoon and had it clarified with the City Attorney.”
13:10 Alderman Dean Massey asks to see exactly where the language is in the Ordinance.
14:34 Gibson reiterated that last year when they made the selections the BZA liaison appointment was “never on my radar.” But she did want to retain it now. She stated that “We had our one-on-one yesterday for another discussion with our attorney and I did communicate that yesterday afternoon to our Administrator and so I explained that I would like to do that [retain BZA liaison position]. I am certain that is where the conversation started with the Ordinance.”
15:42 Massey points out that the language in the Ordinance allows for a change—“the language says that it is concurrent with their respective term of office or appointment.” Gibson states that she is “not unclear on that.”
16:37 Barzizza says that he is just pointing out that it wasn’t addressed last year and he is “pushing back as a result of that.”
16:38 Patrick reiterates “Again, Alderman Barzizza, I apologize. I was not aware of the language, John, at that point, it was only today.” Barzizza says that Lawton did not need to apologize and “Let’s just move on.”
17:00 The meeting moves on.  Harris explains the quasi-judicial Planning Commission and DRC provisions in the Ordinance.
17:49 Alderman Liaison Appointments:
Palazzolo: “What you have been provided is only a recommended slate. At this time you can talk among, or trade, bring up commissions you may or may not want.”
The selection in liaisons is not defined in the Charter specifically.  But in the past, the Aldermen took turns in choosing and changed up the sequence in which they chose every year. It should be noted that since 2015, the Administration has instead prepared “slates” of appointments. 
Palazzolo: “There has been no pattern in twelve to twenty years of making the slate in front of you. What we did was we assembled what people served on last year put that beside, to fill [the positions formerly held by] the alderman that just retired from the Board, those positions, and kind of slot them through with peoples’ different various backgrounds. And so at this point in time this is open to your selection. It is good open governing that you guys discuss it, opposed to what we have done in the past where you communicate with Patrick. Patrick is unfortunately at times the fall guy.  We communicate back. Again, it is all settled already. This format tonight lets you discuss it more and open with your colleagues. What a great time for that. So the table, the floor, is open for anyone who would like to make any horse trading, changes, any discussion, dialogue.” He then adds Alderman Gibson to the BZA as it fulfills an ordinance requirement.
20:15 Floor is opened. Massey brings up a scheduling conflict with two commissions on his “slate:” Environmental and Great Hall.
21:16 Massey requests to “horse trade” with Alderman Rocky Janda for the Personnel Advisory Commission. He explained that he is an insurance broker by profession and that Alderman Klevan [unseated by Massey] had the position last year. Janda agrees to trade PAC for the Environmental Commission position.
22:23 John Barzizza asks to do some horse trading with Janda for Financial Advisory Commission. Janda says emphatically, “Nope. I want that one.”
22:48 Massey: “Mayor, one of the things that I have heard from some of the citizens is that we have two aldermen that have control of some of these quasi-judicial and other very important commissions. And that I don’t think it was done intentionally, but Alderman Owens got PC [Planning Commission], BZA [Board of Zoning Appeals] and Design Review. And then Alderman Janda has the Audit [Commission], the Financial Advisory [Commission], and then you [Janda] have given up the Personnel Advisory Commission. . . . And then the Retirement.”
23:44 Janda: “I think it is important that we have a vertical in terms of knowing the numbers and I am hesitant to give up the Personnel. We have the raises there. We have the benefits there. I think it is important that the person who is in the FAC have definite communication with you, and I will have to have communication in Personnel so we know what we are doing in terms of our budgeting and stuff. It’s as needed [it meets “as needed”] and it is also the first six months . . . . I have expertise in this area. Done it. But that’s one reason I like the Personnel Advisory Commission because you know what the raises are going to be and you know how it is going to affect . . . you already know essentially what’s about to happen. And you’ll get communication on that, but I have had those [commissions] I guess for two or three years.” [Alderman Klevan had PAC in 2016.]
24:34  Massey: “The perception is that we have lost our system of checks and balances.”
24:38 Janda: “Well, that’s what you guys are for. You can attend, anybody . . . of course you ask permission, I don’t know if they communicated that to you, before you go to someone’s commission. But you know everyone’s welcome at every commission meeting. And every alderman can be. Y’all are part of the system of checks and balances. Plus the commission is made up of citizens. Don’t’ forget that. The FAC’s got twenty-four.”
 Owens: “I was not exactly thrilled about having all three of the development commissions, so now that with Mary Ann having Board of Zoning Appeals I feel much more better about it. I mean I did serve . . . I have a Master’s degree in City Planning and served here for ten years. So, Design Review and Planning I am comfortable with. By nature of this discussion here today it kind of evened out a little better than it was originally slated to be.”
26:07 Barzizza: “Forrest, would you give up Parks and Rec.”
Owens considered it, but asked if there was another one he was interested in.
Barzizza: “How about Design Review?”
26:43 Owens: “I would be winning to give up Design Review.”
Aldermen Owens made a motion that the aldermen commission liaison appointments be accepted as discussed and the vote was unanimous to close the selection process. The meeting continued. Citizen members of the commissions were reviewed and voted on.
In the final analysis, the three quasi-judicial development commissions were divided among three different aldermen as had been the practice in the past. Alderman Janda retained three of the financially related commissions, but Alderman Massey secured the liaison position for the Personnel Advisory Commission, one that is critical to the budgeting process. 

As Alderman Owens remarked, “By nature of this discussion here today it kind of evened-out a little better than it was originally slated to be.” Indeed. But the pre-meeting “slate” system created an unfortunate dynamic in which two aldermen pre-emptively held significant power over future developments and financial sectors of city government. This placed the onus on the aldermen who had been granted no such power to confront their colleagues and try to wrestle even some positions away. That is not exactly a democratic process, it certainly isn’t fair nor wise. Likewise, it was discovered that the Ordinance had neither been read nor followed in previous years by the Administration.
But the light has been shown on how our city government works when the voices and concerns of the people are represented and the camera is rolling. That is a victory.

As Mayor Palazzolo stated, “And now the work begins.” 

My Commentary: 

It is interesting that four out of the five aldermen seemed to have issues with the "slate" that Patrick Lawton had submitted. Only Rocky Janda seemed comfortable with his assignments, as he cited the advantages of "vertical integration" in budgeting and finance matters.

Besides the obvious issues of concentration of power in the "slate", the administration itself had two immediate changes:  1. Mary Anne Gibson had been assigned to be liaison to the Library Commission. There is no liaison to the Library Commission.  2. Mary Anne Gibson had lost her position on the Board of Zoning Appeals on the slate, and it had been given to Forrest Owens. This is despite this (from the Commercial Appeal article):  

"It's not perfect, but it's recommendations based on experience and boards members have served on in the past," City Administrator Patrick Lawton said of the process earlier in the day."

(Note: If serving as a  liaison to a particular commission in the past was a criteria, why was this position moved on the slate from Mary Anne Gibson to Forrest Owens?)  

That was the least of the problems, it turned out. Not only did Mary Anne Gibson want to remain the liaison to the Board of Zoning Appeals, it also was against the charter to change the liaison to this particular commission in the middle of the term, without her consent!  Patrick Lawton claimed he only discovered this the day before when looking over the charter. From what was said in the meeting, it is quite possible that Mary Ann Gibson called this to his attention.

Then it gets even more embarrassing for the administration. John Barzizza noted that he had specifically been asked to give up this (or another) position the prior year by Patrick Lawton, and now he finds out that this went against the charter. He registered a protest.  Mary Anne Gibson says she had not originally even expressed an interest in the BZA position, and correctly distanced herself from the decision to take the position away from Mr. Barzizza. Now that she has served on it, she wants to stake her claim.  All this discussion takes place in the beginning of the video, as noted above by Sarah Freeman.  I found this quite fascinating. There are more details that can be accessed by viewing the video.

Because of the publicity of the issue raised by Sarah Freeman reported in this blog, the questions by the Commercial Appeal writer in response to the issues raised in the blog, and finally the admission that there were two large errors on the "slate", the slate was now being characterized as a starting point, and that some "horse trading" was fine.  

If you look at my previous post, you will see that the "slate" was not originally characterized as being a "starting point", but more of a done deal, from the office of Patrick Lawton:  


If he had originally hoped for discussion, perhaps it would have been more prudent to note this as a starting point for discussion, or at least put "proposed" in the subject.   

Fortunately the administration does seem to respond to public scrutiny at times, so we should be thankful that the community has some watchdogs like Sarah Freeman to help provide that scrutiny. Without her efforts the charter provision on the BZA liaison could very well have remained undiscovered, and the subsequent "horsetrading" would not have occurred.

The rest of the meeting had to do with the horsetrading. You can check the timeline above for more information on that, or view the video. 

As it turns out, Forrest Owens expressed discomfort with being a liaison to all three quasi judicial commissions, and after he gave up BZA back to Mary Anne Gibson, he also traded away being Design and Review board liaison to John Barzizza (Rocky Janda said "no" to Mr. Barzizza's request to trade Finance). Dean Massey thought it would be logical for him to take over as the liaison to Personnel, because he had experience in this area and it had been held by his predecessor (Mr. Klevan) in the past. The shift in this position from Mr. Klevan's alderman position to Rocky Janda was another example in which the experience of the board members and what aldermen had served on in the past did not seem to have been considered by the "slate." Rocky Janda agreed to trade the Personnel liaison position, although he then noted the value of vertical integration. The Personnel Commission is particularly important in light of issues raised in Commercial Appeal articles last summer, and noted in these past blog posts:  

Charter, Charter, What's in the Charter? And What is the City Administrator's Salary?  

Thank you Jane Roberts-Vacation Buybacks and Other Perks 

Then there is the issue of those pesky insurance policies that are still so costly to the city--  

Protecting Upper Level Germantown Employees Comes at High Cost to Taxpayers  

Shining a Light on Germantown wishes the very best to all our aldermen in their positions of responsibility.  As I reflect on the last year, I feel a lot of gratitude for the citizens who care enough to be informed about governance issues, and who read this blog. 

However, I am particulary grateful for the citizens who serve our community in official capacities. We all need to remember that governance often involves conflict, and that the citizens can be better informed when decisions are hashed out in public, even if that conflict can look "undignified" on the surface.  

The complete list of the aldermen liaison positions is read by Mayor Palazzolo at the end of the video, and the newly shuffled slate is passed unanimously.

Sunday, December 18, 2016

Stacking the Deck with Aldermen Liaison Appointments

There is a special called meeting of the Board of Mayor and Aldermen on Tuesday, December 20.  The agenda is linked here.  It seems that even before the new alderman, Dean Massey, has been officially welcomed into the fold, the Board liaisons to the various commissions have been decided, without any apparent input from the actual aldermen. 

Here is the announcement: 

One would think that the aldermen would have some sort of say into which commisions they served on, but apparently not this year, according to Sarah Freeman (see letter). For an indication of how it has been divvied out in the past, consider this from 2008: 

Of particular interest to me was the fourth and fifth paragraph above: 

Alderman Drinnon asked that in the selection process if there was a policy, understanding, or rule that no one alderman would serve on more than one commission from the Department of Development, specifically, the BZA, DRC, or the Planning Commission. 

The Mayor (Goldsworthy) restated that the consensus of the Board was that an alderman should serve in no more than one of the three community development commissions that make recommendations for quasi judicial decisions (BZA, DRC, and Planning Commission. 

Please note that the announcement this year had Forrest Owens assigned as a liaison to ALL THREE of the quasi judicial commissions. Yet, for purposes of checks and balances, in the past it was not considered appropriate for a single alderman to be appointed to more than one of these commissions. 

Also note that there was no arbitrary assignment of aldermen to liaison positions in the past. Is this something that the mayor and City Administrator should decide by fiat? 

Just as Forrest Owens seems to be overburdened with the quasi judicial decision making positions, Rocky Janda has landed the financial ones. Sarah Freeman explained it all in her email to me. 

What is particularly odd is that just as the aldermen are digesting their arbitrary commission assignments, they are also supposed to be able to pass judgment on the citizens sitting on those commissions, without having time to review the applications. 

Something is amiss. In particular I am concerned that the checks and balances that were deemed appropriate in 2008 have been dropped, and, as Sarah noted, there seems to be an imbalance of power into the hands of two aldermen, neither of whom will be up for re-election until 2020. 

The Commercial Appeal posted an online article on this subject a few hours before the scheduled meeting.   

Germantown Mulls Aldermen Appointments, Critics cite Power Grab 

Friday, December 9, 2016

Official Word on New Second Public Hearing on Zoning Ordinance.

The official word is out. There is a to be a repeat of the second public hearing of the proposed zoning change.   

Wednesday, December 7, 2016

Germantown Delays Final Vote on Zoning Changes

The Commercial Appeal reported yesterday afternoon that the City has delayed the final vote on zoning changes until the next BMA meeting after Christmas. This is thanks to the citizens of Germantown voicing their objections to the scant notice as reported in my post on this subject two days ago. Thanks also to the City for responding to this issue quickly. Here are a few excerpts from the article:  

From Cameron Ross, Planning Director:  

It's general maintenance and review of zoning codes and processes," Ross said. "We take an annual review to determine ways to enhance, clean up and add clarity. We take some of the issues we've noticed in projects and clean it up."

From Dean Massey, incoming alderman: 

"No one knew there were even material changes," Massey said. "If word had not spread once it got out, it (the changes) would have gone through without discussion. That's wrong, and it's part of the problem with transparency that we talked about during the campaign." 

From Sarah Freeman, citizen  

"It's unfortunate the city is trying to pretend these aren't huge changes. These have great potential to change growth in ways we don't want."

There is no indication that there is anything formal planned for information/feedback from city officials or citizens between now and the third reading. It will be left to citizens and various neighborhood associations to discuss the proposed changes and communicate with the City and their aldermen about various provisions that cause concern. At least there is a time out and we can all digest these proposals, ask questions of the City, and voice our specific concerns about various provisions. We may have to use the third reading as our "public forum" by showing up at City Hall for the BMA meeting, and "Citizens to Be Heard." 

If citizens and neighborhood associations have concerns, it might be best to request individual meetings with the aldermen before the next meeting.  

Update: There will be a new second reading.  


Monday, December 5, 2016

Major Proposed Zoning Changes, a "Public Hearing" and Nobody Came

Without any fanfare, Germantown's "Smart Growth" zoning appears to be in retreat, and these and other major zoning changes are ready for a scheduled third and final vote before the BMA at the next meeting on December 12. These zoning changes could affect many Germantown residential neighborhoods and have the potential to significantly alter the flavor of our retail districts. 

All of this was pointed out to me by Sarah Freeman in an email late last week.   

The second reading (at the last BMA meeting November 28) was supposed to be the "public hearing" for these zoning changes, and this "public hearing" was not noted on the City of Germantown web page, except as an agenda item for the BMA meeting. Nor was there any official document easily available for public review before the meeting took place. After Sarah emailed me, I contacted the City and they provided me with the link to an original document noting all the changes. For transparency, I link it below (and no, I have not carefully examined this, but Sarah has been reading and reviewing it.)  We need as many people as possible looking at this.

Link to Proposed Zoning Changes

In a twelve minute October meeting of the Planning Commission, these measures were passed. There was some explanation but no real discussion. 

Just two of the changes were noted by Cameron Ross at the meeting: 

1. The warrant of one story building within T4 T4R T5 T5R districts that was suggested to be at 20 feet (ground to flat roof or eave or roof)  

2. The addition of limited retail allowances as defined within the smart code to T4R and T5R.  

The whole point of  "Smart Growth" was that we are a landlocked community, with little space for commercial growth, and that we need to recognize that retail space is at a premium. The best way to grow would be to grow "up" with higher density developments.  Along with this, the setbacks to the sidewalks were reduced, and parking lots were required to be away from the streets and behind the storefronts.  

Here is an article that states the reasoning behind "Smart Growth". (The Thornwood development is an example of this.)   

Memphis Daily News Article

Apparently there is little demand from developers for multi-story retail developments in Germantown. While I can understand a possible need to step back from this requirement, how exactly will the return of the strip mall mesh with the "no setback" (from sidewalks) that was also part of Smart Growth? I talked with Sarah about this, and her concern is that there will now be Sunglass Hut stores ten feet from the sidewalks.

One of the biggest changes has to do with lighting from garages of commercial businesses. My familiarity with this issue is due to various hearings held concerning the Travure development, which is located somewhat near me. Nottoway residents had issues with the lighting in the proposed garage illuminating their yards and windows, and Gill Properties was required to put barriers on the garage openings to block the light. The developer was reluctant to comply, and kept trying to argue that "lighting" in the code really meant light fixtures. That did not fly, and rightfully so. Apparently the remedy now is to change the ordinance about commercial lighting not being visible to residential areas from garages to light fixtures not being visible. So under the proposed ordinance it will be okay for commercial lighting to interfere with the privacy in a dark residential neighborhood, as long as the lighting fixture is hidden. Nottoway residents need to pay attention because Gill could always come back to the Planning Commission with revised plans based on the new ordinance. 

Personally, I admit to being very uninformed about most zoning issues, and therefore I am going to quote some of what Sarah sent in her email (The page numbers refer to the page numbers on the linked document above.):

If you click on the link Michele sent you (Pauline), you will see that many of the changes are fairly benign. Some simply clean up references to the Economic and Community Developer Director (Cameron Ross), see pg. 18. On pg. 22, Sec. 23-67, the changes replace “petition” with “application” but many typos remain unfixed (should read “an application”—not “a”). The new method for approving modifications of wireless transmission facilities is on pg. 31. On pg. 40, Sec. 23-136 – Parking Regulations, proposed changes require that vehicles (that do not exceed 8 ft. in height and 20 ft. in length and 8,000 lbs) “shall” be parked on hard-surfaced driveway areas and designates where other trailers, etc. may be parked on personal property. The Residential Estate District (R E 10) zone is stricken entirely from the ordinance (see pgs. 41-46). There is an odd hiccup in that there is a second and following pg. 46 which is different from the other pg. 46. On the second pg. 46, proposed changes to yard requirements under Sec. 23-183 add language requiring rear yards to be not less than 50 ft. in R E districts. Pg. 93 indicates new businesses that can be in C- 1 zones, viz. professional services businesses such as architectural, accounting, engineering, and law offices and child care facilities and medical and veterinary clinics. 

At pg. 97 it begins to get interesting. They need to clean up the language as it is supposed to deal with the number of parking racks provided “at a ratio of one bicycle space per 20 motor vehicle spaces (1:20). No more than 20 spaces shall be required for any project.” These seem to be only for the non-Smart Growth commercial zones. The language references both bicycle spaces and motor vehicle spaces but ends with a statement that does not say which is referred to in the limitation to “20 spaces.” Just dumb. This bike spaces change comes up again on pgs. 105, 113, 119, 124, 183, 236.

The other stuff gets more serious. Pg. 98, for planned shopping centers: “The Planning Commission may approve modifications to the parking requirements in order to accommodate a particular mix of uses.” This sounds like new authority has been granted to the PC regarding parking “modifications”/exceptions. They have tried this by other means in the past and this looks like the latest attempt. This change comes up again on pg. 105 and 112.

Pg. 194 begins to get into the critical Smart Code rezoning changes. Sec. 23-745 – Warrants. These are deviations to the zoning requirements that potentially are allowed “in those instances where reasons are shown that would justify a deviation from the strict requirements of the provisions of this article as to property to which this article applies by operation of law or by election of the property owner, the PC (Planning Commission) shall have authority to permit such deviations.”

The proposed changes strikeout that Warrants can be requested for designating civic buildings and civic spaces and instead insert that Warrants can be given to “Decrease building height in T4/T4R (secs-23 -769 – 1 (a) and T5/T5R (23-770 1 (a).” This means that the current restrictions requiring buildings in these zones to be two or three stories would change so that buildings could be only one story, minimum of 20 ft. in height (by Warrant). Completely throws out the whole idea behind Smart Growth. This appears to be, as you noted, an admission that “Smart Growth” has failed.

Pg. 203, Division 3 – Use Standards, Sec. 23-763 – Permitted Uses is highly problematic as the reader cannot tell what zones are involved as the “Formatted Table” bubble obscures the zone labels—we can’t tell what uses are being changed for which zones. On the following page, we can’t tell what the new red boxes mean as far as use changes!

Pg. 207 is where proposed changes to T4R and T5R would add “Limited Retail” to what could be permitted in these restricted zones. These were supposed to be transitional zones between single-family dwellings and the high density T4 and T5 developments. Currently, only residential and parking facilities are allowed. I have attached a photo of what “Limited Retail” means. But looking at the tables on pgs. 207 and 208, it appears to indicate that everything that can be done in T4 can be done in T4R and T5R. Pg. 227 also shows the changes in Permitted Encroachments in what will be allowed in T4R and T5R. This is a mess and a nightmare!

It is important to note that Warrants can also be obtained to permit “Lighting levels beyond those permitted.” Pg. 228, deals with the restrictions on the parking facilities that can be located in T4R. Current language states that when a parking structure is located at the perimeter of a building “it shall be screened or treated in such a way that cars and lighting are not visible from the street or from abutting residentially zoned properties.” The proposed changes strikeout “lighting” and substitute “light fixtures.” The problems we are concerned with aren’t “light fixture” pollution but light pollution! So much for the much touted promises of “Smart Growth”-- that residential areas would be protected from the light pollution of these huge dense developments adjacent to our homes!

When I spoke with Sheila Pounder (city planner) about how much light could by law be emitted from the parking facilities, she wasn’t sure but thought it was two foot-candles. But Warrants could permit even higher levels.

There is so much more to chew on, thanks to Sarah, that I may need to eat my organic carrots instead of juicing them. (I am really trying to change my eating habits and move on from eating Snickers and Mars bars rather than looking into governance issues.)   

Sarah obtained the most recent zoning map from Germantown, which she told me had at least two errors in them. I am uploading her snapshots of some of the affected areas:  

Shining a Light feels that we need a REAL public hearing on these zoning changes. I admit to not being well informed. I do feel that I am opposed to the lighting change, unless I can be convinced otherwise. I would love to hear the pros and cons of all the other changes.

The only way to have a true public hearing about this is to contact your aldermen and insist on it. We all missed the "public hearing" for which notice was given but not in any way that we would actually notice. We were all too busy with the election, Snickers bars, organic carrots, our own lives, or whatever to follow and notice the agenda item for the last BMA meeting.  

We need this for TRUE transparency, rather than just a weak attempt to meet the legal requirement to give notice.  If you agree, please contact your aldermen.

Here is a link to the email addresses of four of the aldermen:  

I do not know the email address for our newly elected fifth alderman, Dean Massey.  If I find out I will include it as an update to the blog. 

An update in my next blog post!!  The third reading has been put off until the January meeting.  See this post HERE.

Sunday, December 4, 2016

Part 1- Houston High Athletics and Arts Foundation- a brief history of the Turf Project

A Proposal for a Fieldhouse was presented at Football Banquet
At the recent football banquet, plans were unveiled for a new fieldhouse. Football boosters paid for the plans and hope to persuade the Houston High School Athletic and Arts Foundation (hereinafter, called "the Foundation") to fund the fieldhouse's construction. This exciting sounding project led me to think about the Foundation and its history. More specifically, in this post, Part 1, I will discuss the beginning of the Foundation's first funding venture, the Houston High turf project. As you will see, I am compelled to make a number of assumptions. The Foundation is a 501(c)(3) charitable foundation, and its records, unlike the City's, are not subject to open records requests. That fact alone necessarily undermines my effort to give a full account. Also, even though some of the records, including the construction contracts, are likely at GMSD, I do not want to unnecessarily burden them with open records requests, so I will concentrate on issues that are more readily apparent from public sources. 

I am also going to add a personal note here--I was a high school athlete that benefited from having very good facilities at my public high school, and I practiced for choir in what was then a state of the art choir room. So I naturally love capital expenditures for athletics and the arts. Also, for years I was the finance manager for a 501(c)(3) organization that received public funding. So I am totally on board with this method of funding capital expenditures. 

Before I delve into the turf project, I want to make it clear that the field certainly looks beautiful.  And, rather remarkably, it was finished in time to use for the 2015 football season. As far as I know, the financing and pledges are now in place to make the Foundation a viable organization, and it can continue to pursue public/private partnerships for the noble purpose of furthering its goal of providing needed funding for the athletes and artists at Houston High School. I laud the Foundation and its goals, but I want to highlight some missteps along the way that contributed to the lack of transparency in the process of funding and paying for the turf project. Avoiding these missteps could go a long way towards ameliorating some public skepticism about the Foundation. Recounting this brief history here may help GMSD and the Foundation avoid similar difficulties in the future.

The idea for the turf was first presented to the Board of Education at a work session in the fall of 2014. The advantages of artificial turf, including saving water and lower maintenance costs, were noted in the following Commercial Appeal article: Germantown to Consider Artificial Turf for Houston High

 Germantown to Consider Artificial Turf for Houston High  

I would like to note that without this article, we would have no record of this discussion. No minutes are taken at work sessions, and at that time there were no recordings of work sessions. JAM had not yet started its wonderful work of describing the meetings.   

Although the article stated that hiring a consulting group would be voted on at the October 20, meeting, I did not see it in the minutes for that date, and, again, JAM had not yet begun.

But JAM in Germantown reported this from the May 6, 2015 work session

The proposed athletic fields funding was now just one field, and it was to be funded by donations. The Board of Education subsequently voted to contract with Athletic Surfaces, Plus, for a consulting agreement. Approval for that came May 18, 2015. According to the minutes

It was emphasized at this meeting that the turf would be completely funded with Foundation dollars (this was the first public mention of the "Foundation"). For transparency and convenience I put this portion of the meeting on YouTube. 

The next step should be approval of the plans so that construction could take place. I could find no record of the Board voting to formally authorize the field. I am not sure how that authorization occurred. This was probably coordinated between Mr. Cherry, Mr. Manuel, and the Foundation. Also, although the Foundation was mentioned in this meeting, I never saw a vote giving the Foundation any kind of formal authorization to make changes to the field.

Notification to the public about this was a little less than would be desired.  The public knew about the plans only if they happened to know about and read JAM in Germantown, but the only thing on the agenda for the May 18 meeting had been for a "consulting agreement." 

In the summer of 2015, parents suddenly saw a turf field being constructed, and naturally they wondered what happened. Many parents were very supportive of the idea of artificial turf, due to the ongoing mud and drainage issues on the football field, but others had some questions. 

Most of these questions centered around the priorities of the school district.  Was a new football field more important than fixing the leaky roof at Dogwood School, for instance?  But other parents questioned the safety of the field, and wondered whether the field could increase athletic injuries, and questioned if the ingredients of the field were environmentally safe.  Some wondered if putting "arts" into the title of the Foundation was truly accurate, since the turf field was such a large project and had no "arts" element in it.  Since it was to be paid for with outside funding, at least the priority concerns for public money were answered.  

The turf project was discussed again by the Board of Education in July of 2015, after there was some drama concerning funding issues. By this time the bills had started rolling in, and the Foundation could not pay them due to cash flow problems. According to Autumn Enochs, the controller of GMSD at the time, one proposed solution was to have Houston HIgh School pay contractors, and then get reimbursed by the Foundation. She strenuously objected that this would be improper, and contacted Houston High School officials directly over the issue. According to Enochs, this was a major reason that she was terminated. She explained to the Commercial Appeal:  

Autumn Enochs account given to Commercial Appeal 

Per the article:  

She also says that in July, Manuel and Cherry directed the school’s financial secretary to misappropriate funds by paying a $70,000 bill to a vendor on the Houston High turf project. The money was supposed to be paid by the Houston High Athletics and Arts Foundation, which had not yet received its 501(c)(3) status. Enochs, through her attorney, says the payment “would practically deplete the school’s bank account.”  

Here is another Commercial Appeal story about the former controller, and her relationship to her employer, GMSD.   

If this account is correct, then the Foundation had signed contracts and begun construction on the project before the IRS status had been officially granted. The pledges for the field had most likely been received, but that is not quite the same thing as having enough cash on hand to pay all the bills. Generally it is not an issue that the IRS determination letter is not yet received, because the 501(c)(3) designation is retroactive to the date the entity began. Perhaps some donors were hesitant to pay their pledges until the letter was in hand. The Foundation eventually financed the field, probably secured by future pledges, but the financing may not have been firmly in place before contracts were signed and construction begun. 

What is murky is the exact timeline of the dates the contracts were signed, and payments due, the date of the IRS determination letter, the content of the loan document and the day it began, etc.  From Ms. Enochs' reports, it seems that the Foundation had to scramble around to make payments on the construction contracts for the field.

Autumn Enochs was terminated, but GMSD apparently decided it was best to follow her advice, and Houston High School never had to pay any of the bills.  

At the GMSD Work Session on July 15, 2015Jason Manuel said that extra money had been allocated from the state and he suggested using $125,000 of it as a donation to the Foundation.  JAM gives us this account:

Note, that Lisa Parker said that the City had donated. It had been placed in the City budget, but the specific provision was not brought before the BMA until the end of July.

At the July 27, 2015 BMA meeting, the specific grant to the Foundation was passed.  At no point during that meeting was there a suggestion that the Board of Education donate to the Foundation. Here is the Memorandum of Understanding, which indicates that it is a $125,000 1:1 matching grant for pledge dollars received:

From the GMSD Board meeting of July 27, 2015, (note that this is the same night as the BMA meeting) Budget Amendment 9 was brought up, which called for a $125,000 to the Foundation.  From JAM: 

Particularly noteworthy is that Mr. Manuel admits the cash flow issue at the Foundation, and that the donation would ensure the solvency of the entity.  A neutral observer could rightfully make the judgment that cash flow and solvency issues should have been contemplated before contracts were signed and construction begun on GMSD property.  Had financing been made contingent on obtaining funds from the City and GMSD, thus signaling that the school district implicitly, if not explicitly, backed the debt?  We do not know, as this is all hidden in the murkiness in the 501(c)(3) structure of the Foundation. We do know that the pledges received and debt are officially on the books of the Foundation, and not the GMSD. What we do not know is exactly what happens if the Foundation is somehow unable in the future to make payments on the debt.  

Another thing to note is that a total of $250,000 of City and GMSD funds were allocated to a capital expenditure for the schools that was not on Mr. Manuel's top ten list of public expenditures.  

Shining a Light is NOT making the argument that taxpayer funding should not have been made available for this project. Even though it was not on Mr. Manuel's Top 10 list of capital expenditures, it is possible that the leveraging of the taxpayer money with private donations made the GMSD and City funding worthwhile. However, these donations should have been known on the front end--the project should not have been sold as one that would not need any GMSD funding, only to have that suddenly change two months later.

There was further discussion about the $125,000 pledge by the GMSD to the foundation at a subsequent GMSD Board meeting on November 30, when the MOU of GMSD was discussed and passed in a 4-1 vote, with Mr. Hoover dissenting: 

We do know that the Foundation felt it had sufficient funding in 2016 to install the Jumbotron before this school year began. I have somehow come to appreciate a public high school having a Jumbotron, although I confess I have not seen it in action. The addition of the Jumbotron to the field was not specifically approved in a formal Board action.

In Part 2, the Houston High Athletics and Arts Foundation, I will examine the leadership of the Foundation and its close ties to the GMSD administration, and a bit more will be revealed about the donors to the turf field and finances of the Foundation. In the meantime, for the accounting geeks out there, here is the first Federal Form 990 (IRS filing for non-profits) for the Foundation, which will be discussed in Part 2. 

Foundation's 2015 Federal Form 990

This form used the "cash" method of accounting rather than the accrual method, so the net worth is certainly much greater than the figures indicate (pledges receivable are not included as income in the "cash" method.)