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

June 27th, 2010
Editorial: Secret government raises unsettling questions

By the San Marcos Local News Editorial Board

If government of, for and by the people means anything at all — that is, if the promise of the United States as self rule by free citizens is anything more than a cynical, self-deceiving slogan — then the citizens must insist on absolutely nothing less than open, transparent government.

In San Marcos today, we have turned our public affairs over to a secretive, clandestine government hiding under legal cover. This government can’t possibly have the public’s best interests at heart, because it is intrinsic and indispensable to the public interest that the public at least know what the government is doing. And yet, with another occurrence shrouded in secrecy, we do not know what the city government is doing, because the city government refuses to come clean.

Thursday night, the city council voted, 4-3, to terminate City Manager Rick Menchaca. The city followed the bare letter of the law in publicizing the meeting and its purpose, but did not follow its usual procedures for distributing the agenda or televising the public proceedings. This city’s citizens were left, effectively, in the dark respecting the fate of the city’s top administrative professional, the man who is most responsible for executing the city’s business. It is simply unconscionable that the public should be excluded from a decision of this importance.

We know very little about the Menchaca firing. Only the mayor, the councilmembers and their confidants know what’s behind it. We know that Menchaca said the city council spent eight to ten hours in executive session on his evaluation. We know that a 4-3 vote tells us it wasn’t an open-and-shut case. We know that at the end of up to ten hours of deliberations about Menchaca, all of it in executive session and under as little public scrutiny as possible, pushed by Mayor Susan Narvaiz, according to Menchaca’s account, the mayor finally drummed up a bare majority vote to fire the city manager.

We know of no instances of lawlessness or malfeasance on Menchaca’s part. We have heard of no compelling motive for Menchaca’s removal. There has been no outcry, nor even a whisper from the public to remove Menchaca. We have heard complaints that city staffers didn’t especially enjoy working for Menchaca, which is hardly a strange tale in the workplace. But if that should be the reason, then City Hall ought to produce such an account, if for no other reason than to quiet the sort of uncharitable speculation that this city council has earned through the last several years.

Instead, the city, on the advise of its attorney, is refusing to discuss the matter further, hiding behind the action’s status as a “personnel matter,” which is exempt from public disclosure. We understand why personnel matters require discretion. But this is much more than a personnel matter. This matter cuts straight into the heart of how this city is governed, how policy is shaped and how power is wielded within City Hall. The city council owes us a thorough explanation.

And if it takes a lawsuit by Menchaca to open up this government and show us what’s inside, who is greasing who, who is twisting arms and how, then we welcome the sunlight, because this type of government under shadow is not worth having and we absolutely must not tolerate it because it is rife with peril for the public interest. Secrecy in government is a wide opening for unscrupulous actors to exploit public resources and prerogatives for personal gain.

But we’re not holding our breath waiting for sunlight. We are holding our breath waiting to learn how the sunlight will be blocked. The dance to come between Menchaca and the city will speak volumes. If the city winds up buying Menchaca’s silence — and he received about $500,000 from Midland when that city fired him in 2007 — it’s an indication that Menchaca and the city both believe his case is pretty strong.

In that light, this remark City Attorney Michael Cosentino is especially interesting: ““There are legal consequences for discussing personnel matters publicly, and they are not good consequences.” It’s not against the law for councilmembers to talk, but the legal consequences for doing so aren’t good? Draw your own conclusions.

We should mention that the citizens of San Marcos have left themselves open to this scenario. The citizens have been willing to live with a charter that allows the council to fire the city manager by a bare majority. Then, the citizens have three times, once without challenge, seated the same mayor. Complaints that Narvaiz has consolidated too much power in her office long preceded Menchaca’s arrival. Furthermore, too many elections in recent years have presented no opposition to the mayor’s candidates. Combine those factors — a mayor with too much power for a council-manager form of government, her hand-picked councilmembers running without opposition and a charter allowing a simple majority to unseat a city manager — and you’ve got a toothless city manager position with no safeguards against an over-reaching mayor.

It’s absolutely no less of a danger to vest excessive power in an unelected city manager, but a bare majority vote for dismissal leaves that position much too vulnerable to fickle politicians. The next time the city amends the charter, we absolutely recommend that the required majority be increased to five votes, or else the city manager will continue to operate under political pressure to disrupt the continuity of his professional staff. If the city manager truly is a rogue, then five votes is within reach. Under the present arrangement, the long list of professionals sacrificed to politics in recent years includes two city managers, a city attorney, a municipal judge and several staffers in the planning department. Thus, we have lost more talent and good conscience than this city can bear.

We have nothing to say here about Menchaca’s performance, other than to point out that he put capital projects into motion and did a generally responsible job. Now that he’s out of the way, we suspect that we’ll see what kind of difference he made.

A couple remarks coming from Menchaca’s camp point to a belief that Narvaiz is “on her way out of office.” We don’t know if that means Narvaiz isn’t running for re-election in November, or if she has aroused so much bitterness that she can’t win. In either case, a sitting mayor devising an exit strategy with four months in office and no more than an interim city manager in her way shapes up as a developer’s bonanza, if the mayor’s record is any indication.

We expect the Springtown Center mess to come back before the council very quickly. Last time we heard about Springtown, the mayor tried to give $3 million worth of incentives to the developer while the property was in foreclosure. We all know she’s a good fundraiser.

And consider the following scenario. Carma Texas, a subsidiary of a Canadian parent company, is working on a 1,338-acre development with 3,427 homes, mostly just outside the city limits.  Discussions are already afoot with the mayor and this foreign-based development company seeking financial incentives and potential use of the city’s borrowing capacity to fund residential development amounting to an incentive totaling into the tens of millions of dollars.

We wouldn’t be surprised to see her at the forefront, along with former city council members and staff, leading the charge and suggesting that we “must fund growth” in almost the same apologetic tone as: Pretty. Near. Perfect. Municipal incentives for residential development are practically unheard of because residential development is such a tax base loser, particularly for school districts. Under the current situation, she won’t have an independent city manager to stop her. What’s that worth to Carma, and what’s it worth to a mayor who could be on her way out of office?

If these issues are to be discussed and considered, they must not be discussed in executive session. They must be given the full light of day and under the scrutiny of all of us, those of us who pay the bills and fund our city. We must not find out about such deliberations by reading our tax bills in years to come. We want those responsible to be responsible.

Is the fox in the hen house? You make the call.

Wild questions, to be sure. But when the city keeps its dealings secret, those become questions that we are tempted, and obligated, to ask.

We understand there will be the typical partisan outcry to our projections and prognostications. We only ask that you take the time to listen to the discussion and focus on the impact of the real outcome to our community and to your families.

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22 thoughts on “Editorial: Secret government raises unsettling questions

  1. Good editorial, and right on target….mostly. I draw a strong exception to this statement:

    “Furthermore, too many elections in recent years have presented no opposition to the mayor’s candidates.”

    First, there are many of us out there who have been involved in opposition campaigns in the last few years that have resulted in run-offs and close elections. Ms. Coppoletta has repeatedly ran as an opposition candidate when no one else was up for the challenge, resulting in a run-off election with Mr. Thomason this last December. Daniel McCarthy and David Newman ran excellent, fiscally responsible races against Mayor Narvaiz in 2008, only 11 votes short of a recount.

    Where you are short in this editorial is to remind the citizens that they CAN make two statements on this issue. 1.) Come down to City Hall on Tuesday night, sign up for Citizens Comment between 6:00 and 6:45., then get up for three minutes and make it clear that secrecy will not be tolerated in the process. Then, keep coming back and reminding them every two weeks which way you will vote in November. We The People of Hays will not be denied the right to know how our government is ran, and we will not go away.
    2.) Vote in October and November. Get your neighbors and friends to vote.

  2. Regarding discussing personnel issues publicly:

    As a former city attorney, I make a distinction between personnel matters involving personal wrong-doing — things like sexual harassment of a subordinate, financial misfeasance, fraud, etc. — and issues concerning management style and performance. The latter issues can be discussed publicly without much fear that the personal opinions and conclusions about a public official’s management of the city will result in legal liability. The issue of management style is one that should be front and center when a city manager is hired and should be raised any time the city manager fails to fulfill the management expectations of the council.

    One solution to the current situation is to prepare a factual statement in cooperation with the city attorney about the city manager’s performance based on the opinions of his bosses and make that public. If, for instance, a city council member feels that the city manager has become too difficult to communicate with or he is too autocratic in his dealings with his underlings, those opinions should not rise to liability for the city so long as they are based on observable behavior and supportable facts. These matters are mere opinions, about which reasonable people can disagree.

    But lawyers for institutions tend toward caution in advising about what to do in such situations. It is much easier to tell city council members to say nothing than work to create a public document that lets the citizens know the basic parameters of the disagreement among council members and between the city manager and his detractors. Too often, public officials hide behind the law so that their actions cannot be fully evaluated, but sometimes they have to pay for such recalcitrance.

  3. Things just got interesting. Thank you for writing this article, as well as responses and informing San Marcos residents. Can someone publish this in Spanish? Thank you all. I wish this could be more widely distributed.

  4. I want everyone to pay close attention to Carma Development. The total number of acres is 1338.5. They are planning on a golf course and open space, that acreage is 339.3, and the commercial space they want is at 48.4 acres, that leaves roughly 950.8 acres. Oh, and don’t forget roads and the right of way needed, which would be roughly 200 acres, so now we are down to 750.8 acres left for homes. Now pay close attention, they want to build 3427 homes on 750.8 acres. When you divide this all out it comes to roughly 4.56 homes per acre.

    Due to county codes homes needing septic systems are required to be on an acre or more. They NEED to have the city annex this acreage so they can build this type of development with city sewer and water.

    I would also like to remind everyone exactly who Carma Development actually is. Do any of you remember Blaco Vista? This development is located North of town off Yarrington exit. If anyone has any questions of what kind of developers they are they should drive through this neighborhood. I am very scared to have them develop any thing more in San Marcos or Hays County.

    When this came up back in January 2009 Ryan Thomason was all for this project. I will sure be interested to see where he stands now.

    I hope our local government will make this firing along with everything else they do transparent. I am getting really tired of our government deciding whats best for all of us.

    P.S. To our City Counsil; I WILL BE VOTING IN NOVEMBER

  5. city staffers say that he not only micromanaged, but he questioned every hire asking “why did you not hire an hispanic”? i have fought racism all my life, this sounds racist to me.

  6. We better get more involved in P&Z and City Council meetings, or else a lot more shenanigans will take place between now and the November elections. It’s a scary list of things they might want to shove down our throats, including:

    1) Roads above Spring Lake (including one that runs right over Sink Springs, an open hole to the aquifer at the end of Spring Road)
    2) Annexing land to benefit developers (at the expense of current citizens)
    3) Implementing half-baked “smart” codes
    4) Condemning land and taking it away from long-time homeowners
    5) Giving more taxpayer money needlessly to developers (for example, Springtown Mall)
    6) Further increasing our long-term debt and obligations beyond our means
    7) Using their positions and our money to convince voters to approve a permanent tax increase where we send millions of taxpayer money every year to Austin and receive questionable return on investment (ACC)
    8) Approving hundreds of thousands of dollars a year for more economic development personnel
    9) Hobnobbing with the County Commissioners to spend parks bond money on a shooting range
    10) Further weakening the Horizons Master Plan through more sweet deals for developers
    11) Ill-considered Land Development Code revisions (for example, off-site parking, trees, water quality, noise, lot sizes, building heights, etc)
    12) Wasting more money on “branding” the city
    13) Implementing a “Neighborhood Commission” to help rubber stamp their agenda
    14) Approving an inflated annual budget without any true cost cutting

    Now is the time to become more vigilant with our Mayor and City Council.

  7. It will be interesting to see what happens with Carma, although I’m not going to make any assumptions there.

    I will mention that they wanted the southwest portion of the loop relocated (within the thoroughfare plan) to McCarty, because it runs through their proposed development today. When they brought this to the now defunct Transportation Advisory Board, I asked them why the loop couldn’t run through their property and their response was that it would make it too difficult to sell the homes. I then asked why it was ok to put the loop through established neighborhoods on McCarty, making those homes harder to sell and I got a non-answer (it is even harder in a new development, I believe they said).

    If it does come back, watch for them to ask for that loop to be moved out of their development and onto McCarty. With the TAB eliminated, the only dissenting voice will be the citizens.

  8. I should add that the TAB was legitimately sunset, largely (IMO) due to a lack of direction/charter. I do not believe it was sunset to clear the way for Carma. In fact, I am sure it was not.

    The TAB did vote against Carma’s request to relocate the loop, though. The next time around (if there is one), that vote won’t take place.

  9. “T Nichols June 27th, 2010 7:45 pm :”

    “Steve you left off finally admitting to their role in killing Jimmy Hoffa”

    This type of smug, cavalier posture is a major contributing factor toward our overall problem.

  10. Editors: Once again, amen and amen and amen. Strange how our town virtually turned its entire community philosophy inside out while no one was looking–or by whatever stealth was necessary when someone did try to look. It might seem that in the course of two elections, WE decided that speed, fast growth, and ANY TACTIC CONNECTED TO MONEY were our ideal for a SUSTAINABLE future (that pesky word again). Those new to the municipal governance business have little or no idea of the cost of dumb development, especially development or bought development which is dense residential, and to which we seem willing to pre-plan or pre-arrange to commit streets, water/wastewater infastructure, public safety services, etc., not to mention the several impacts on our water and power future. (Sink Creek is our direct lifeline. We can buy expensive water to drink, but not to replace our River, our soul.)

    Those services mentioned are all damned expensive to put in place, and residential tax rates nor commercial tax rates can pay them off in anything less than nearly the time it takes for them to need maintenance or replacement. The “forward thinking developer” collects his largesse, takes the competitive advantage of not having to pay like everybody else, pockets the cash, and leaves the citizens, second owners or local builders to carry the load. Speed, as some of us heard as early as the ‘seventies, KILLS. Uncalled for and uncontrolled growth are known better as cancer. It’s about economic development (holy of holies!), alright, but not yours, mine, or the family’s next door.

    Why, I knew a mayor not so long ago who actually stated to me that new development had NO cost, only benefits. A clear sign of ignorance, greed, self interest, or some combination. And yes, all the crazy stuff that is sleeping is just about guaranteed to came around again, under some mysterious new guise and a new suit of PR. That happens whenever the citizens snooze or the citizen-watchdogs are thrown red meat laced with chloroform.

    Lamar Hankins is not blowing smoke. He is a master City Attorney who has actually seen this movie, to the chagrin of many who worked with him, but the joy of those who were seeking the City’s honey-pot. Like Menchaca and several other past staff members, he rode a 3-3 split for a LONG time before A tactic was devised to cure him as a problem. Lamar’s problem was that when the Council for advice, he was candid about what decisions would NOT be defensible in Court, as well as what would be. Integrity was his bedrock principle, and I assume, still is.

    Steve Harvey does not speak with forked (or selfishly motivated) tongue, either. He does his homework, under far less than ideal conditions, and reports facts, transparently. His future projections are based on a solid record of past performance by the sitting, and some past, Courtiers at the Dais. He needs a PA system or megaphone, and help.

    Has any ambitious soul toted up the amount of our FUTURE tax revenue has been gifted over to “incentives?” Or how long at the present rate of revenue accrual and debt retirement it will take to pay off the debt we are legally bound to? Has anyone checked into Freedom of Information, which yanks the cloak off “pre-development” deals and–yes, Virginia–Executive Sessions? That can be a tiresome exercise, by the time the staff builds fortifications around it and adds copy cost and operational expenses and staff time, etc., etc. A judge might make a good pry-bar. Or even a wise and experienced municipal attorney, Public bodies shy away from such as a reflex, but at least they have Perry-appointed judges (i.e., likeminded “Free-Enterprisers”) to rely on now).

    Anybody who truly believes that we, here, in our most-favored location and with all our riches, have to buy growth or strive to “sell ourselves” (that has a funny ring to me), is either incredibly naive or dreams of personal welfare. So, too, IMO, with putting parking meters back downtown. We took ’em out because people were ignoring their tickets wholesale; we were losing both money and parking, and Municipal Court was too little to take on such a mess. Same with changing LBJ and Guadalupe back to two way streets; they were MADE that way to facilitate traffic, after all. Those two policies opened up downtown at a time when only lawyers’ offices and bars seemed likely to locate around the Square or in the broader CBD. Old archival San Marcos Broken Records tell those tales as well as anybody.

    It is wonderful to see a small group of “citizens picking up the tab” begin growing and getting curious and being willing to devote some of their precious time to looking after the good of the community. That is supposedly one of the minimal costs of democracy. It creates discussion. It brings good ideas to the fore. It offers incentives to those who WANT to be part of this community, and disincentives to those who would buy, beg or steal money and power.

    Said it before, will likely say it again: BEFORE the election season is the best time for the lion to roar, or perhaps to whisper, in their ears. That is, after all, what they were elected for. They work for those who pay the bills. Run ’em into the sunshine, sez I. Disinfect ’em, and if they pass muster, THEN support their candidacies. If not, discuss recall with them, quietly but firmly. Anybody can do it. It’s free, and citizens can’t be stifled or fired.

    You might notice that until the Menchaca matter is settled, staff CANNOT have any positive influence. They are all supposed now to toe the party line and hunker in their bunkers, lest they too feel the chill or the blade. But then, the Council actually has the same problem, if they only realize it–and their threat is personal disgrace, which is hard cheese to swallow. (Also clips their ambitions, so they don’t end up taking their skills to Austin or WDC.)

  11. I have to agree with B. Franklin. While I do not mind police officers voicing their political views, I would prefer it if they stuck to issues, rather than insulting the people they are paid to serve.

    Of course, if this is a different T. Nichols, then I apologize. The post is still not very constructive, but trying to hold the total population of posters to a higher standard is a losing battle.

  12. I am grateful to San Marcos Local News for providing awareness of and insight to the issues, and the ability for us to discuss in the “Comments” section. Most people I talk to agree we need, want, and must have more transparency from our government. It may be hard to imagine achieving that at the state or federal level, but doggone it, at the local level, right here in our wonderful community, surely we can reverse this trend of secrecy in city government?

    Hopefully we will have good candidates to consider in the upcoming Mayoral and City Council seats election. But between now and November, it is vital we step forward in greater numbers to express our voice to the P&Z and City Council. I’d like to think the fact that so many citizens showing up on the “smart” codes really did send a message to P&Z (and, indirectly, to the Mayor and City Council) that we don’t appreciate, and ultimately won’t stand for having things shoved down our throats.

  13. T. Nichols is retired he can insult any one he wants. As for others who worked in the city someone may still have a civil case pending. The public is not party to somethings get over it.

  14. Wow “nobody,” thanks. I was not aware. I guess then, that falls under the second half of my statement.

    Sorry to have ruined your day. I’ll try to get over it, as you suggested.

    There, I’m over it.

  15. If it’s a civil suit, it is already public information. Very few fo those can be sealed. And when it’s large sums of taxpayer dollars being spent, those paying the taxes have a right to know.

  16. Personal reason make this sound suspicious. Is it sexual harassment? I do not understand. “Personal” is not a reason it is an excuse. Who is the city council trying to protect yourselves or Rick?

  17. Steve once again hits the mark. P&Z is unusual among boards and commissions in that it plays a direct regulatory/advisory role to the Council, and operates in the context of state and federal law. That is, it’s not just “advice,” and thus must be given judici9allly and in an informed manner. Those appointed used to have to meet some imaginary higher standard of qualification than merely being a buddy of some of the Council; it was generally the expectation and practice that P&Z members would have gotten some seasoning by serving in other, “learning,” capacities, so they would come to the dais better informed and practiced in municipal government than, say, members of the Cemetery Commission. The job asks for dedicated and principled, well-informed (and mostly non-political) decisions that actually shape the Community. P&Z is therefore “ground zero” for what will be seen on the Council agenda. The Council is to consider P&Z’s collective wisdom, assuming they have gone into development matters at some depth and in some detail, so the Council become judges, not arbiters, of development decisions.

    To be clear, I have no brief either way with any sitting member. I am merely concerned that some of the decisions made over the last while smack of the Council’s first hand-picking good water-carriers, then advising P&Z what direction their decisions must take. The collective wisdom of BOTH groups could not lead, I earnestly hope, to arbitrary and irregular (Is “weird” too strong a word?) processes such as we have seen with the Springtown, Buie, and other proposals? Or the big ones coming up that already have been given a head of steam by the Council, like the proposed developers’ highways through the natural areas, recharge zone lands, and, for Pete’s sake, in the direct line of flow of Sink Creek toward the Springs.

    I don’t think we have stumbled into a time-warp where developers and groups no longer socialize, strategize, golf together, and talk about where the easy pickings are in the area–cheap land and “incentives” that can at one stroke of the pen not only add to, but magnify, their normal, highly-profitable investments? Or which P&Z’s are willing to believe their rather consistent prepared stories about how the community will be much better off with their marginal projects? They respond to “whatever the market will bear,” since that is their job. When did we ever see a market in which the seller dictates terms to the buyer? (Oh, wait. I forgot about banking, energy and insurance. Never mind.)

    Nothing whatever against developers. Just that there are good and conscientious ones, and there are eaters of roadkill. I love a creative and responsive one, and think we should all encourage them–first by letting them know we are not a village of idiots, and won’t settle for mediocrity. Then by working together to include them in the community.

  18. Mr. Moore,

    I assure you as a Planning and Zoning Commissioner that I do not, and have not ever received any coaching or direction from any City Council member. I also am not friends with anyone on Council other than Ryan Thomason and he was not on Council when I was appointed so your theory of “being a buddy with someone on Council” does not hold true.

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