The Texas Attorney General has been asked to decide whether Beaumont Independent School District (BISD) trustees can legally appoint a currently-seated minority member to an additional two-year term, bypassing a public vote. The appointment would be the result of a lottery between trustees Zenobia Bush and Terry Williams, whose terms are scheduled to end in 2015. The “loser” would fill a newly districted at-large trustee seat starting in 2013 and ending in 2017. A first reading of the stipulation in the form of a policy revision has already been submitted into the record by a 4-2 vote of the trustees, with trustees Mike Neil and Tom Neild opposing.
Beaumont residents voted in May 2011 to approve a proposition changing the BISD trustee election scheme from seven single-member districts to five single-member districts with two at-large districts. More than a year later, with thousands of dollars spent on consultants and voting map preparation, BISD has yet to decide on a plan to enact the voters’ plan. A map of the proposed districts for BISD’s May 2013 election has been sent to the Department of Justice for clearance, but the BISD board has not adopted that map as of this time.
Beaumont civil rights attorney Vann de Cordova claims BISD’s plan to extend a trustee beyond their elected term is “contrary to statute and unlawful.” BISD attorney Melody Chappell, who has defended BISD’s plan to appoint a trustee with post-dated term limits, has sought assistance from State Rep. Joe Deshotel in seeking guidance from Texas Attorney General Greg Abbott. Although the BISD board had not instructed Chappell to seek outside assistance, trustees voted to ratify her actions Oct. 18.
Deshotel, who chairs the State Committee of Business & Industry, submitted a request for opinion from Attorney General Abbott at the end of September at the behest of BISD attorney Chappell. In his correspondence to the attorney general, Deshotel explains BISD’s “5/2 Transition Plan.”
“The Board will conduct a drawing to determine which of the Trustees currently serving District 1 (Terry Williams) or 2 (Zenobia Bush) will complete his or her four-year term in the redrawn District 2. The unsuccessful Trustee currently representing District 1 or 2 will be appointed to serve as an at-large Trustee for four years, beginning with the 2013 election,” the correspondence reads. “The rationale for this transition would be to prevent the shortening of a duly elected Trustee’s term while preventing retrogression by holding election on both at-large positions concurrently during the same election cycle.”
Deshotel further asserted that, “The District’s attorney (Chappell) has advised that there is no statutory prohibition to a 5/2 transition plan as proposed. Two of the District’s Board members assert that under Texas Education Code § 11.059(a) the transition plan is illegal.”
While waiting for a response from the attorney general, attorney de Cordova and BISD trustees Neild and Neil also submitted information for Abbott to ponder before making a final decision.
Right to voter representation
A brief filed with the attorney general by de Cordova on behalf of those opposing BISD’s plan to appoint representation without voter support contends the district’s plan would violate several provisions of the Texas Education Code. Furthermore, the brief alleges Deshotel is not authorized to seek an opinion from the attorney general on the matter.
“The Texas attorney general is statutorily authorized to render an opinion to ‘a committee of a house of the legislature,’” the brief explains. “The attorney general is not authorized to render an opinion for a chairman or individual member of a committee. Rep. Deshotel’s September 28, 2012, request does not support the attorney general’s exercise of jurisdiction because it does not show that the request is made by ‘a committee.’” Additionally, “the attorney general is prohibited from giving legal advice or issuing a written opinion to a person who is not listed in the subchapter.” Among those listed in “the subchapter” as authorized to make a request to the attorney general are the governor; the head of a department of state government; a head or board of a penal institution; a head or board of an eleemosynary institution; the head of a state board; a regent or trustee of a state educational institution; a committee of a house of the legislature; a county auditor authorized by law; or the chairman of the governing board of a river authority.
Assuming the attorney general accepts jurisdiction, de Cordova then addressed questions raised by Deshotel’s September request.
“Please be advised that the BISD Board of Trustees did not collectively act, at an open meeting, to direct or request BISD’s counsel (or any other person) to seek an attorney general’s opinion about the subject matter of Rep. Deshotel’s September 28, 2012, request,” de Cordova states. “In addition, the ‘proposal’ mentioned in Deshotel’s request was provided by BISD’s counsel to the Trustees at an August 16, 2012, open meeting. Counsel prepared it without input from the collective BISD Board. The Board took no action on counsel’s proposal. A transition plan submitted by Trustees Neild and Neil, which did not include extending any Trustee’s term of office beyond his or her remaining term, was, however, voted down.”
Furthermore, de Cordova’s brief alleges, “Michael D. Getz, Esq. was informed by a staff attorney with the Elections Division, Texas Secretary of State, that it would be unlawful for the Board of Trustees of an independent school district to extend a Trustee’s term of office beyond the Trustee’s remaining term of office as part of TEX. EDUC. CODE § 11.052 redistricting.”
“The stated ‘rational’ behind the requested opinion is suspect,” de Cordova’s brief asserts. “BISD claims a need to keep the at-large positions on the same election cycle to prevent ‘retrogression.’ Even if true, a Board majority can remedy the perceived problem by placing both at- large positions on the May 2013 ballot under TEX. EDUC. CODE § 11.053(a).
“It is incontrovertible the BISD voter approved 5/2 election change was and remains highly unpopular with the four sitting minority BISD Trustees. These four Trustees comprise a Board majority. These Trustees, with the aid of BISD counsel, desire, if legally possible, to keep minority Trustee Bush or Williams in office as long as possible. Thus, BISD’s counsel has proposed, under the guise of preventing ‘retrogression’ and/or the shortening of terms, to ‘appoint’ minority Trustee Bush or Williams to one of the two at-large positions and to thereby hopefully extend his or her term for two additional years, two years beyond Trustee Bush’s and Williams’ May 2015 term.
“The desired end, however, does not justify the use of unlawful means.”
The brief from de Cordova contends that BISD’s “need” to appoint a trustee to an at-large position was more of a “desire” than a necessity and “cannot logically be reconciled with the applicable statutes.”
Additionally, according to the brief, allowing BISD’s proposal “would allow, in effect, a Board majority to usurp the voters’ right to elect an at-large representative of their choice as mandated and timed by statute.
“The proposal is not only unlawful, but an affront to all BISD voters. To the relief of said voters, however, the proposed conduct is wholly unsupported by applicable law, and subject to court correction should it be adopted.”
Transition Plan for Dummies
BISD’s proposal allows for voters to elect representation for districts 4 and 5, and one at-large representative in May 2013, while appointing a trustee to an at-large seat beginning in May 2013. Voters would then vote on trustees to represent district 3, 4, and 5 in May 2015. Both at-large seats would be voted on together in 2017 “to prevent retrogression,” along with trustees for districts 4 and 5.
An alternate plan proposed by trustees Neil and Neild would allow voters to elect both at-large seats “to prevent retrogression” in May 2013, along with trustee position for district 4. Trustees currently serving in districts 1, 2, and 5 have terms that expire in 2015; those positions would be voted on at that time.