by BRAD ROLLINS
The city of San Marcos has sued an activist group pushing for a citywide election to prohibit fluoridation of the municipal water supply.
On April 2, the people behind Communities For Thriving Water – Fluoride Free San Marcos submitted 1,634 signatures in support of a city charter amendment that states, in part, “The city of San Marcos … shall not fluoridate the public water supply or accept any fluoridated water for use in the San Marcos water system.” Assuming at least 60 percent can be verified as belonging to registered San Marcos voters, the assembled signatures would be more than adequate under state law to guarantee the amendment a place on the ballot.
Since San Marcos adopted its current home-rule city charter in 1967, however, amendment petitions must be accompanied by “an oath or affirmation that … each signature to the paper appended is the genuine signature of the person whose name purports to be signed thereto, and that such signatures were placed thereon in the [circulator’s] presence.” City Clerk Jamie Lee Pettijohn echoed this language when she declared the petition invalid at a San Marcos City Council meeting on May 5.
“None of the petition papers contains an oath or affirmation that each signature was the genuine signature of the person who signed it. Therefore, none of the signatures may be counted,” Pettijohn said.
In a May 18 letter to city officials, Austin attorney Brad Rockwell argues on behalf of Communities for Thriving Water that the charter’s petition requirements are superseded by the Texas Local Government Code, which does not require an oath from signature gatherers.
“There is no legitimate legal basis for any failure by the city council to submit this charter amendment to voters,” Rockwell writes. On June 16, in a second letter to city officials, the activists’ attorney concludes, “Your continued refusal to comply with your duties and deprive the people of San Marcos the opportunity to vote on the question as to whether their public water should be fluoride-free will leave my client with the unpleasant option of filing a lawsuit.”
The next day, on June 17, the city filed suit in state district court against Fluoride Free San Marcos and three of its officers or supporters: Wimberley resident Kathleen O’Connell and San Marcos residents Sam Brannon and Morgan Knecht. The city is asking a judge to declare that the petition does no comply with state and municipal law; that relevant state and municipal laws are constitutional; that the petition is void; and that the San Marcos City Council, therefore, does not have to put it on the ballot for voter consideration.
In addition to a declaratory judgment, the city seeks to recoup “reasonable attorney’s fees” from the defendants.
According to the lawsuit, Pettijohn advised O’Connell on at least three occasions prior to and during the petition drive that signature forms were required to include an affidavit from the circulator. In the last of these exchanges in October 2014, O’Connell replied, “Our lawyer has reviewed our petition and said it is in good order,” the lawsuit states.
The city disagrees: “Under the plain language of the [Texas] constitution, a home rule city charter may contain provisions that govern the process for adopting ordinances and charter amendments unless those provisions are inconsistent with the constitution or have been specifically limited by statute.”
This weekend, O’Connell said her organization maintains that the anti-fluoride petition drive was conducted properly and that the resulting petition — all 572 pages of it — is valid.
“Our petition is legal. We have met all the requirements of state law,” said O’Connell. The city’s apparent resistance to the ballot measure “seems to indicate an intentional effort to subvert the will for ballot access of 1,634 San Marcos voters and deny the opportunity to vote on an important health issue.”
The San Marcos water utility adds fluoride derivatives to maintain a level of 0.7 milligrams per liter, the amount recommended by the Centers for Disease Control, said Tom Taggart, executive director of the city’s Public Services division.
The CDC and dozens of other medical and health organizations endorse fluoridation to help prevent tooth decay. More than 20 million Texans — nearly 80 percent of the state’s population — are served by water utilities that deliver fluoridated tap water, according to the CDC.
In addition to preemptively addressing Rockwell’s arguments that the city is does not have the authority to require affidavits from petition signature gatherers, the lawsuit also outlines other potential problems with the proposed charter amendment.
By the city’s count, the petition’s proposed charter amendment language encompasses three separate propositions. One prohibits the city or its contractors from fluoridating city water; a second prohibits the city from “accepting any fluoridated water” into its municipal water system; and a third prohibits the city from buying or installing any equipment used for fluoridating water. This runs afoul, the city argues, of a line in the Texas Local Government Code that states: “[city charter] amendment may not contain more than one subject.”
Another of the city’s arguments seem to straddle legal and practical, if not political, considerations.
Noting that the city’s regional water treatment plant is a major hub in the network of utilities that buy surface water from the Guadalupe-Blanco River Authority, the lawsuit states, “These customers include thousands of residents and voters in the city of Kyle, the city of Buda, and in unincorporated areas of Hays County served by the Goforth Water Supply Corp, Sunfield Municipal Utility District and Monarch Utilities. Those voters who reside outside the corporate limits of San Marcos would not have an opportunity to vote on defendants’ proposed charter amendment even though it would directly impact their health and their pocketbooks, if adopted.”
As of Friday, the defendants had not filed an answer to the city’s lawsuit nor had any hearings been scheduled. Aug. 25 is the city council’s deadline for calling a special city charter election.