San Marcos Mercury | Local News from San Marcos and Hays County, Texas


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attorney Brad Rockwell argues on behalf of Communities for Thriving Water that the charter’s petition requirements are superseded by the Texas Local Government Code, which does not require an oath from signature gatherers.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.


Fluoride Free San Marcos sample petition sheet

Fluoride Free San Marcos petition submittal letter 04/02/15

First letter to city from petitioners’ attorney 05/18/15

Second letter to city from petitioners’ attorney 06/16/15

City’s lawsuit against Fluoride Free San Marcos 06/17/15

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21 thoughts on “San Marcos files lawsuit to invalidate fluoridation petition

  1. thanks so much for the story brad! a couple more things that are essential facts your readers and the people of san marcos need to know:

    Communities for Thriving Water Fluoride-Free San Marcos has been talking with the City Staff and City Council for over 2 years now. We have done everything that we can to create an environment of trust and cooperation with them. Why won’t they let the people of San Marcos vote on this? to democratically choose for themselves if they want to keep adding hydrofluorosilicic acid “fluoride” to the City water or not. This is not the naturally occurring kind of fluoride, calcium fluoride. These fluoridation chemicals come from the chimney stacks after production at the Potash phosphate fertilizer company in Aurora, North Carolina. It has fluoride and arsenic and lead in it. “

    The City does not dispute this. They have admitted these are the fluoridation chemicals they have been adding since 1988. The first fluoridation injection station people probably go by all of the time and don’t even know it. It’s right across the street from the Salt Grass Restaurant about 100 yards away from the San Marcos River where many of the river’s springs source water begin near the beautiful falls on Sessoms Drive.

    Hydrofluorosilicic acid is an industrial waste by-product from fertilizer and aluminum factories that the FDA has NOT approved as a drug to prevent cavities and by law, the EPA will NOT allow it to be dumped in our rivers, lakes or oceans. It should not be in our city-supplied drinking water either.

    Why would we put this toxic and hazardous waste in our drinking water? The union representing scientists at the EPA headquarters in Washington, DC has gone on record as opposing this bizarre form of hazardous waste management.

  2. It would be a different world if we still had real investigative journalism. Fluoride would have been gone a long time ago. As “Deepthroat” once told the Washington Post reporters, “Follow the money.”
    Not only do these toxic waste purveyors make millions selling us this stuff, they save many times that by not having to dispose of it properly. In addition, the bottled water industry, another blight on our environment, is making millions providing the public with fluoride-free water.
    With all those ‘millions’ floating around, and politicians as greedy as ever, the public health isn’t nearly as important as their careers.

  3. Until we stop using automobiles and support the mass transportation of good and services and fix our leaky faucets and zero-scape our lawns and collect rainwater and volunteer with local nonprofits and know where your food comes this is the least of your worries.

  4. Maybe, but did you submit your petition correctly? No circulator can swear that they were present, because the petitions hung on clipboards across town for years. So Thriving Water will have to show that the city law on petitions is beyond the power of the city. That’s going to be tough.

  5. Kathleen, you should get you facts straight before you start trying to scare citizens about Fluoride near Spring Lake. FYI, the Fluoride tank you mention across from the Salt Grass is empty and has been for years. It only took one call for me to find that out. The City injects the Fluoride at the SWTP located on HWY 21.

  6. It doesn’t take much research to discredit the claims of the anti-fluoride crowd. Wikipedia is heavily foot-noted – if you want to invest a couple hours you can knock down the concerns one by one. Yes, I know Wikipedia is open-source, blah, blah, blah but follow the links to the original studies.

  7. I didn’t know Jeremy Jamm had moved his practice to San Marcos! Is Sweetums sponsoring the petition?

  8. There are many facets to this debate. I think the petition is as valid as any others that have floated around town. Are there enough signatures that can be verified as voters? I doubt they were faked. I think the city hoped it would never go this far but now have to find a loophole to stop the debate. Thats sad…if fluoride is good and the reports overwhelmingly state that…I don’t see why the San Marcos electorate can’t do their research and vote to keep it.

    Some of y’all have already begun debating the topic of fluoride and have wisely suggested we all start doing our research. From what I’ve read so far…fluoride seems safe and seems to help prevent tooth decay. Some places go farther…saying it’s one of the greatest things of all time. If it were all that great…why do so many countries like Germany, Sweden, Netherland, Finland, Japan and Israel not use it? Did someone forget to tell them how great it is?

  9. The City of San Marcos should be ashamed of themselves. The petition was done in accordance with state law 9.004. I can’t wait for this to go to court. How pathetic a city sue the citizens it is supposed to serve. The city manager, secretary and city attorney need to go!!!

  10. The City of San Marcos is not your mama and has no business making a personal health decision for you. If fluoride is so great, use a fluoride toothpaste. I hope the court forces the city to let voters decide.

  11. Unnecessary harmful chemicals added to our water supply is not the least of our worries. The comments so far are saddening, this city is stopping the people’s vote along with poisoning its citizens.

  12. Wow! I am amazed that the city is so threatened that they themselves filed a lawsuit. I’m assuming this means that adding the hydrofluorosilicic acid to the water is a money making business! If not for the water companies themselves, then for the pharmaceutical companies and health insurance companies down the line. I am so thankful for Fluoride Free San Marcos for standing up for this and holding tight thru this adversity. Let us know what else we can do to get this on the ballot! Thanks so much!

  13. So sad that the city is using public taxes to sue their own constituents. No means no and shame on them for forcing a classified neurotoxic chemical down the throats of their citizens when they have no proof of toxicological studies to show it is safe, no proof that fluoridated water is effective (see the new Cochrane Report) and no proof that supplementing a water supply is even necessary since there is no such thing as being fluoride deficient in the first place.

  14. So one of the officers of “Fluoride Free San Marcos” lives in Wimberley? Yeah, *that* doesn’t call any of the signatures on the petition into question./sarcasm

  15. Beyond legal technicalities the question at hand seems like a no-brainer. Should people have the right to vote on whether or not a chemical (that has been studied and linked to lowering IQ in children is voluntarily added to their water supply at their expense. I don’t know what to say to those who are against the vote.

  16. Hello, I was trying to open the pdfs but it will not work. is there any way i could get a link to them that works?

  17. No problem here with accessing the pdfs. What type of device are you using? Are you trying to open them in a browser or download and open in Adobe Reader or Preview?

  18. It’s a crack-pot fringe element pushing this terrible idea of eliminating fluoride from our water system. These are the same anti-vaccination people who are afraid of radio waves from the new water meter system. Woe be unto us if they are successful in this poor community where it’s not uncommon to see a baby with a bottle full of soda at the local Wal-Mart.

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