1 2 3 4 5 6 7 8 KERR COUNTY COMMISSIONERS COURT 9 Special Session 10 Monday, September 19, 2011 11 1:00 p.m. 12 Commissioners' Courtroom 13 Kerr County Courthouse 14 Kerrville, Texas 15 16 17 18 19 20 21 22 23 PRESENT: PAT TINLEY, Kerr County Judge H. A. "BUSTER" BALDWIN, Commissioner Pct. 1 24 GUY R. OVERBY, Commissioner Pct. 2 JONATHAN LETZ, Commissioner Pct. 3 25 BRUCE OEHLER, Commissioner Pct. 4 2 1 I N D E X September 19, 2011 2 PAGE 3 1.1 Consider/discuss, take appropriate action to accept donation of various animal cages from 4 Nicole Grubbs and authorize County Judge to issue donation letter to donor for reasonable 5 value of same 3 6 1.2 Review and discuss FY 2011-12 budgets and fiscal, capital expenditure and personnel 7 matters related thereto, including, but not limited to, employee health care benefits 5 8 1.3 Consider/discuss, take appropriate action on 9 implementation of the Burn Ban 17 10 --- Adjourned 56 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 On Monday, September 19, 2011, at 1:00 p.m., a special 2 meeting of the Kerr County Commissioners Court was held in 3 the Commissioners' Courtroom, Kerr County Courthouse, 4 Kerrville, Texas, and the following proceedings were had in 5 open court: 6 P R O C E E D I N G S 7 JUDGE TINLEY: Good morning -- good afternoon, 8 ladies and gentlemen. Let me call to order this special 9 meeting of the Kerr County Commissioners Court posted and 10 scheduled for this date and time, Monday, September 19th, 11 2011, at 1 p.m. It's a bit past that time now. There's just 12 a few items on the agenda. The first item on the agenda is 13 to consider, discuss, and take appropriate action to accept 14 donation of various animal cages from Nicole Grubbs and 15 authorize County Judge to issue donation letter to the donor 16 for reasonable value of same. Ms. Whitt? There you go. Do 17 you want to come tell us what this is about? 18 MS. WHITT: Well, Ms. Grubbs approached me 19 approximately two weeks ago. She had -- she has a bank of 20 seven cat cages that are stainless steel, very similar to 21 what we've purchased in the past for Animal Control. She is 22 wanting to donate those cages to Animal Control if we can get 23 her a -- a letter. 24 JUDGE TINLEY: Mm-hmm. 25 COMMISSIONER OEHLER: What's the value? 9-19-11 4 1 MS. WHITT: The value, I've got -- I gave the 2 letter to -- 3 JUDGE TINLEY: I've got it. 4 MS. WHITT: I have it with me. 5 JUDGE TINLEY: She requested a donation letter of 6 -- of $1,200. 7 MS. WHITT: Yeah, the value that she's asking is 8 $1,200. But the set that we purchased, which is identical to 9 this -- we purchased nine; these are seven -- cost us over 10 $6,000 brand-new. 11 JUDGE TINLEY: So it's well worth it. 12 MS. WHITT: So it's well worth it. 13 JUDGE TINLEY: All stainless? 14 MS. WHITT: All stainless. It's on rollers, and we 15 can definitely use them. 16 COMMISSIONER OEHLER: I move approval of the agenda 17 item. 18 COMMISSIONER BALDWIN: Second. 19 JUDGE TINLEY: Motion made and seconded for 20 approval of the agenda item. Question or discussion? 21 MS. WHITT: Thank you. 22 JUDGE TINLEY: All in favor, signify by raising 23 your right hand. 24 (The motion carried by unanimous vote.) 25 JUDGE TINLEY: All opposed, same sign. 9-19-11 5 1 (No response.) 2 JUDGE TINLEY: The motion carries. Item 2 is 3 review and discuss Fiscal Year 2011-12 budgets and fiscal 4 capital expenditure and personnel matters related thereto, 5 including, but not limited to, employee health care benefits. 6 We specifically wanted to address the employee health 7 benefits program today, and Mr. Gary Looney, our consultant, 8 is here with us. And tell us what's available to us. 9 MR. LOONEY: For the record, Judge, Gary Looney, 10 consultant extraordinaire. (Laughter.) County 11 Commissioners, it's good to see you today. These monthly -- 12 these weekly meetings are working out just fine. Last week 13 we discussed, to some extent, the proposal we've been offered 14 -- actually, the renewal proposal had been provided by 15 Humana, and also the proposal that had been provided by 16 Mr. Norwood from TAC. And Kelly, I think, probably does most 17 of the work, you know, but Bill can discuss that. 18 JUDGE TINLEY: He's fessing up; he's nodding his 19 head. 20 MR. NORWOOD: That's right. 21 MR. LOONEY: And as I had told Commissioner Letz, I 22 said there were some -- some questions I had about 23 administrative details, particularly dealing with the HCA 24 program that I wanted to -- to try to clarify. Plus, as per 25 instructed by the Court, I did contact the current agent, and 9-19-11 6 1 I also -- also the vice president of marketing for Humana to 2 ask them to provide their best and final offer, which is the 3 spreadsheet that I have provided for you as their best and 4 final offer as far as rates were concerned. After the 5 evaluation and after evaluation of the plan, they're offering 6 -- y'all don't have the other offering by TAC, but TAC's 7 offer is still the best offer on the table as far as premium 8 rates are concerned. Also, with the ability to be able to 9 administer the HRA program. And HRA -- you have to kind of 10 be careful about HRA -- the initials "H.R.A." because they 11 typically stand for health -- let's see, health -- what is 12 it, Kelly? 13 MS. KOLODZEY: Risk assessment. 14 MR. LOONEY: Health risk assessment, which is a 15 common term used by a lot of insurance companies, that are 16 kind of the wellness program, that health risk assessment. 17 In this context, "HRA" has to do with the health 18 reimbursement arrangement, of which y'all are familiar. The 19 -- the Blue Cross/Blue Shield administrative function and TAC 20 administrative function doesn't use that acronym; they use a 21 different acronym, so we wanted to make sure that we were all 22 on the same page with what we were dealing with, including -- 23 I asked them for a number of questions about the 24 administration process in general. There are about 10 or 12 25 questions that I asked Kelly, and which she responded to, all 9-19-11 7 1 in a positive manner. So, I feel like that from the 2 administrative details that we were going to deal with from 3 the HRA, that we're in good stead with that contract. So, 4 after we were looking at giving best and final offer to 5 Humana, reviewing the plan designs, comparative plan designs, 6 it's in the best interest of the County to go ahead and 7 accept the offer by TAC for this 2012 plan year. And I -- 8 COMMISSIONER BALDWIN: I love you, Mr. Looney. 9 (Laughter.) 10 COMMISSIONER LETZ: And the total -- what's the 11 total? I guess the premium's going to vary based on the 12 enrollment. 13 MR. LOONEY: No, that's the Humana numbers you're 14 looking at. 15 COMMISSIONER LETZ: What's on the bottom there? 16 MR. LOONEY: That's Humana. 17 COMMISSIONER OEHLER: Yeah, they didn't mark it out 18 on yours. 19 COMMISSIONER LETZ: Oh. 20 COMMISSIONER OEHLER: Wasn't long enough. 21 COMMISSIONER LETZ: Okay. 22 MR. LOONEY: The same -- 23 COMMISSIONER LETZ: What's the amount, I guess is 24 my -- what I was asking for. 25 MR. LOONEY: Total? Total premium contribution for 9-19-11 8 1 the entire year? 2 COMMISSIONER LETZ: I guess what's the wording we 3 need to use for our motion? Because the premium may vary a 4 little bit based on -- 5 MR. LOONEY: Well, total county budget may vary 6 based on the total enrollment of employees and how it varies 7 during the year. 8 COMMISSIONER LETZ: Okay. 9 MR. LOONEY: How much that varies during the year. 10 So the actual motion, I believe, is to accept the employee 11 and dependent rates as provided by TAC in their proposal. I 12 don't think you need to identify the specific numbers in that 13 process. 14 COMMISSIONER LETZ: Okay. Mr. Norwood? 15 MR. NORWOOD: Yes, sir. We were asked to provide 16 one set of numbers with commission in them and one without. 17 Which set are we going to -- 18 MR. LOONEY: Sans commission. 19 MR. NORWOOD: Okay, sans commission. 20 MR. LOONEY: That's an insurance term. Mr. Norwood 21 likes that. "Sans" doesn't sound as bad as "without." So, 22 sans commission. 23 COMMISSIONER LETZ: What's -- on the HRA or 24 whatever, the -- what do y'all call it? 25 MS. KOLODZEY: HCA, health care account. 9-19-11 9 1 MR. LOONEY: Health care account. 2 COMMISSIONER LETZ: On the HCA, is it calculated as 3 a -- did we -- are we at a 300 -- 4 MR. LOONEY: 500 per. 500 per employee for a full 5 year. And that would cover only items that were subject to 6 the deductible, nothing that was part of -- not any 7 reimbursements for any co-pays or -- or co-payments. It's 8 just those items that are subject to the deductible. 9 COMMISSIONER LETZ: Okay. If -- and since we've -- 10 you were here last, we talked a -- started talking about a 11 $300 HCA. What's the economic impact of that change if we -- 12 MR. LOONEY: Well, the -- it's just -- it's a 13 multiple times the number of employees. 14 COMMISSIONER LETZ: So it will be 200 times 260, 15 basically, or something like that? 16 MR. LOONEY: 300 versus 200. 17 JUDGE TINLEY: And it's set up so that you don't 18 prefund. My understanding is that on the HCA, as that -- as 19 those funds are expended, we will be billed monthly, I guess? 20 MS. KOLODZEY: Yes, sir. 21 JUDGE TINLEY: Or twice monthly, whatever it is. 22 MR. NORWOOD: You don't have to deposit them in 23 advance, that's correct. 24 JUDGE TINLEY: And as we're billed, we just -- we 25 just reimburse, is what we do. 9-19-11 10 1 MR. NORWOOD: Yes, sir. 2 JUDGE TINLEY: So we don't prefund, as such. 3 MR. LOONEY: And it's very unlikely, Commissioner, 4 that every employee would use the full amount of their fund 5 in any given plan year. But as you stated last time when we 6 talked about this, you did want to make certain that those 7 accumulations for active employees retained in their accounts 8 so that they could use them for future expenses. So, it's -- 9 COMMISSIONER OVERBY: A carry-over a little bit. 10 MR. LOONEY: Yes. So we did -- we set it at the 11 $500 number, but we also set it at a maximum of $1,500 per 12 employee. 13 COMMISSIONER LETZ: The -- and the rough 14 calculation -- let me make sure I'm understanding this. If 15 we were to go to a $300 HCA, that's a $52,000 less potential 16 from a budget standpoint? 17 MR. LOONEY: Correct. 18 COMMISSIONER LETZ: Okay. All right. I'll make a 19 motion that we accept the health plan as proposed by TAC for 20 the 2011-2012 -- 21 MR. LOONEY: 2012. 22 COMMISSIONER LETZ: 2012 budget year. 23 JUDGE TINLEY: I have a motion. Do I hear a 24 second? 25 COMMISSIONER BALDWIN: Second. 9-19-11 11 1 JUDGE TINLEY: I have a motion and a second to 2 accept the plan proposed by Texas Association of Counties for 3 health benefits for 2012. And that's the one without 4 commission? 5 COMMISSIONER LETZ: That's the one without 6 commission. 7 JUDGE TINLEY: Okay. Question or discussion? 8 COMMISSIONER OEHLER: Yes. I have a couple of -- 9 JUDGE TINLEY: Yes, sir? 10 COMMISSIONER OEHLER: -- couple questions for -- 11 for the TAC representative. What's your name? 12 MR. NORWOOD: I'm Bill Norwood. 13 COMMISSIONER OEHLER: Bill Norwood. I'm sorry, 14 I'll get it right. My wife and I have done a little bit of 15 question asking about -- about some of the benefits, and it 16 seems that one of the things we were a little surprised 17 about -- we called Hill Country Memorial Hospital, and the 18 E.R. over there takes the Blue Cross and Blue Shield, but the 19 doctors don't. They're not in the network. And I assume 20 that being -- I think that the same emergency room contractor 21 does the one here at Peterson? 22 MR. LOONEY: Sorry, Commissioner. Was it doctors 23 in the Hill Country Group? Or is it just the E.R. 24 physicians? 25 COMMISSIONER OEHLER: Just the E.R. physicians. 9-19-11 12 1 MR. LOONEY: That -- 2 MR. NORWOOD: I'm going to say the same thing he 3 is. Go ahead. 4 MR. LOONEY: That is not uncommon. E.R. physicians 5 typically are contracted by the hospital on an outside 6 contract basis, and they're typically very, very 7 discriminatory, if they accept any co-payments. That would 8 not be unusual, for E.R. physicians not to be within a group. 9 My guess is they're not within any P.P.O., unless you ask 10 them that specific question. 11 COMMISSIONER OEHLER: So they contract with the 12 hospital, and the hospital takes it, so they pay them -- 13 MR. LOONEY: Right. 14 COMMISSIONER OEHLER: -- out of whatever is billed? 15 MR. NORWOOD: But they typically bill charges at 16 their own level, without agreeing to a discount. Because 17 when you need an E.R. doctor, you need an E.R. doctor, and 18 they've kind of got the market sewn up. And that's true all 19 over the country. It's also true, by the way, with a large 20 number of anesthesiologists. 21 MR. LOONEY: But one item that Blue Cross does is 22 that when those circumstances do occur, they reimburse. And 23 if it's a true emergency, they reimburse in relationship to 24 the -- the in-network contribution. 25 COMMISSIONER OEHLER: Okay. 9-19-11 13 1 MR. LOONEY: The -- 2 COMMISSIONER OEHLER: Well, that was a question 3 that, you know, we called and checked on some things, and 4 that was what was told to us. 5 MR. NORWOOD: Pretty much applies to everybody, I'm 6 afraid. 7 COMMISSIONER OEHLER: Everybody that has contract 8 E.R.? 9 MR. NORWOOD: Yes, sir, just about. 10 COMMISSIONER OEHLER: Okay. I think I know the 11 answer to this, but I'm going to ask it anyway. When we 12 start a new -- a new year January 1, any runout claims will 13 be paid how? 14 MR. NORWOOD: They will be paid by Humana under 15 their fully-insured contract. 16 COMMISSIONER OEHLER: So they are going to have to 17 pay a runout on the claims? 18 MR. NORWOOD: Yes. Any fully-insured contract in 19 the state must do that, and we'll have to do the same thing 20 if you were to leave us in a year. We'll be responsible for 21 those runout claims. 22 COMMISSIONER OEHLER: About how long does that 23 runout go for? 24 MR. LOONEY: Goes for a full year under the 25 contract per Humana. They've got a full year of obligation 9-19-11 14 1 to reimburse claims. 2 COMMISSIONER OEHLER: So, you know, what I -- we 3 called and talked to them. I felt like I got the wrong 4 answer from Humana. 5 MR. LOONEY: Yeah. 6 COMMISSIONER OEHLER: But, you know, the way that 7 they explained it to us -- 'cause I gave them a hypothetical, 8 and they said, "Well, your new provider would be responsible 9 for those -- those runout claims from the previous year." 10 After the -- 11 MR. NORWOOD: No, they gave -- that's state law. 12 COMMISSIONER OEHLER: And so that, to me, tells me 13 that if there are claims that come in, and that is the case, 14 then the employee's going to have to meet another deductible 15 before -- 16 MR. LOONEY: We'll start -- we'll start a 17 calendar-year deductible January 1. 18 COMMISSIONER OEHLER: Okay. 19 MR. NORWOOD: Just like you have been. You'll 20 start over January 1. 21 COMMISSIONER OEHLER: Okay. 22 MR. NORWOOD: And if that claim is incurred on 23 12/31 and they receive it two or three weeks later, they got 24 to pay it. 25 COMMISSIONER OEHLER: Okay. 9-19-11 15 1 MR. NORWOOD: Typically your runout's over in about 2 60 days, except for the last 3 or 4, 5 percent, but that can 3 drag out. But they do have up to a year. 4 COMMISSIONER OEHLER: Yeah. Well, those were my 5 main questions, because that's -- you know, that is an 6 important thing to employees that would have that problem. 7 And then they think, well, we're going to have to pay another 8 deductible starting January 1 because the bills didn't get 9 in. 10 MR. NORWOOD: It's -- the state was nice enough to 11 take care of that for us. 12 COMMISSIONER OEHLER: Okay. 13 JUDGE TINLEY: Any other questions? Comments? All 14 in favor of the motion, signify by raising your right hand. 15 (The motion carried by unanimous vote.) 16 JUDGE TINLEY: All opposed, same sign. 17 (No response.) 18 JUDGE TINLEY: The motion does carry. Thank you, 19 gentlemen. 20 MR. LOONEY: Thank you. 21 JUDGE TINLEY: Any other particular budget matters 22 that we want to address now, or do we want to defer on the 23 rest of those? 24 COMMISSIONER LETZ: The only one I have is, at our 25 last meeting, Tess was going to kind of plug in some 9-19-11 16 1 different numbers, like a different insurance number. 2 MS. MABRY: Right. Well, the plugging in the 3 different insurance number, the problem is you have to plug 4 it in every single line item in the budget, every -- every 5 single department. It's -- rather than doing that, since we 6 didn't have a final, what I actually did was just ran some 7 numbers, and it looks like, from the savings just now, plus 8 the overage in the budget we already had, it's going to run 9 between 500,000 and 600,000 extra. 10 COMMISSIONER LETZ: Okay. 11 MS. MABRY: So we have that additional done, but 12 it's not plugged in the budget. 13 COMMISSIONER LETZ: And so what pay increase for 14 the employees is that running? 15 MS. MABRY: That will cover a six and a half. 16 COMMISSIONER LETZ: A six and a half? 17 MS. MABRY: Mm-hmm. I believe we calculated -- it 18 was 589,000 with the six and a half. 19 COMMISSIONER LETZ: So, what I -- and I know this 20 won't happen, but if we were to get our budget exactly and 21 not give that pay raise, that would add 589,000 to our 22 reserves? 23 MS. MABRY: Yeah, it would. Mm-hmm. 24 COMMISSIONER LETZ: Which is 400,000 less than the 25 Auditor wants. 9-19-11 17 1 MS. MABRY: Right. 2 COMMISSIONER LETZ: Thank you. 3 JUDGE TINLEY: Any other questions? Okay. Let's 4 go to our addenda item, Item 3; to consider, discuss, and 5 take appropriate action on implementation of the burn ban. I 6 do have a number of participation forms I'd like to get to. 7 Boots Follmar? Come forward. And I believe your address is 8 219 McCullough Ranch Road; is that correct, sir? 9 MR. FOLLMAR: Yes. 10 JUDGE TINLEY: Okay. 11 MR. FOLLMAR: Yeah. I own 15 acres right there 12 across from Hill Country Camp right there. I'm pretty 13 familiar with burning. From 2001 to 2004, I cleared 1,250 14 acres at Silver Wing Fly-In, and it took me three years to do 15 that, but I done all the burning and clearing and all that 16 kind of stuff. But I'm just against burning by barrel or any 17 of that, as dry as this county is and what-have-you. I have 18 a lot of experience with things like this. Even if you burn 19 in a barrel, you got something on top of it, you still got 20 sparks, but also you can get wind like we did yesterday 21 evening, blow the barrel over, and here you go; we got a 22 fire. And that's basically what I -- what I -- what I'm 23 against. 24 JUDGE TINLEY: Okay. Thank you, sir. 25 MR. FOLLMAR: Thank you. 9-19-11 18 1 COMMISSIONER BALDWIN: Thank you, Mr. Follmar. 2 JUDGE TINLEY: Rose M. Hall, with an address of 118 3 Robin Hill View South here in Kerrville. Is that correct? 4 MS. HALL: That's correct. 5 JUDGE TINLEY: Thank you, ma'am. 6 MS. HALL: I live in Kerr County, and in Precinct 7 2, Commissioner Overby's precinct. 8 COMMISSIONER OVERBY: Yes, ma'am. 9 MS. HALL: And I have written a letter to the 10 editor. It was published last Wednesday, and I would like to 11 reinstate what I've said there. I really am opposed to 12 burning of any kind as long as we have such dry conditions 13 here in Kerr County, and I stated those reasons, because of 14 the -- the danger of burn barrels that were just brought up, 15 and so I won't say that again. However, when you have that 16 situation, and I live on a hill, you have updrafts, so 17 anything that burns and catches fire and uncontrolled is 18 going to rush up a hill. And since we're just full of hills, 19 that is a very serious condition. And for that reason, I 20 would urge you to have a zero tolerance on these kinds of 21 burning. 22 We also put our firemen -- and most of those in the 23 rural areas are volunteer firemen, and I would say all, 24 maybe, and we're putting them in danger unnecessarily if we 25 continue to allow people to burn when we could restrict that 9-19-11 19 1 and at least narrow the possibility of those fires starting. 2 We can't control lightning or a power line that drops and 3 sprays, you know, sparks, but we can do something about the 4 things that humans can control, and I would urge you to do 5 that. In addition, when you have a burn like they 6 experienced in Bastrop, then your insurance rates are just 7 going to go through the roof. And not only that; it's going 8 to take decades to recover the economic and the human loss 9 that go along with that. So, for those reasons, and the fact 10 that I think that it's really important to protect the 11 majority in situations like this, that we can do nothing 12 about except control by self-discipline among bodies of 13 government and the people who live in these communities. So, 14 I thank you. 15 JUDGE TINLEY: Thank you. 16 COMMISSIONER BALDWIN: Thank you, ma'am. 17 JUDGE TINLEY: Mr. Tommy Olafson, 1308 Harper Road 18 here in Kerrville. 19 MR. OLAFSON: Yes, sir. Thank you, Commissioners. 20 I was here last week in Commissioners Court to consider a 21 total burn ban for Kerr County. I had a little handout I 22 gave to Mr. Oehler and the rest of y'all outlining the Medina 23 County's total burn barn that they've instituted. I also did 24 a little research on the internet and found out that Bandera 25 County and Llano County also have instituted total burn bans, 9-19-11 20 1 and Kimble County is actually considering it at their next 2 meeting. I have a handout I'd like to give y'all. Pass it 3 around, please. It's from Andrew Morrow from T.C.E.Q. If I 4 can call your attention to the highlighted portions, it was 5 kind of a question and answer. It says the County 6 Commissioners Court can ban most types of burning, including 7 domestic waste burned in a barrel with a grating on top. 8 Also, down at the very bottom it goes on to say, 9 the T.C.E.Q. supports the County's decision as to whether or 10 not this type of burning should be banned. As the local 11 authority in the county, the Commissioners Court has the 12 authority, responsibility, and the most accurate information 13 regarding the need of burn bans. While the T.C.E.Q. supports 14 the County's decision, the T.C.E.Q. does not have the 15 authority to enforce the conditions of a county burn ban. If 16 the burning meets the conditions authorized by T.C.E.Q. 17 rules, but the County has banned the burning, the County has 18 the sole authority to enforce its burn ban. So, I would just 19 like -- I really don't understand it. I mean, if you have 20 your County Attorney look at it, maybe he'll spell it out a 21 little bit better. To me, it sounds like you have the 22 authority to institute a complete and total burn ban for the 23 county, and I'd sure like to see y'all do that. Thank you. 24 COMMISSIONER OVERBY: Thank you. 25 JUDGE TINLEY: Thank you, Tommy. Ms. Anne Brown, 9-19-11 21 1 451 McCullough Road here in Kerrville. 2 MS. BROWN: Morning. I have a handout for y'all 3 too. Thank you. My name is Anne Brown, and I've resided as 4 a personal resident of Kerr County since 2004. At that time, 5 I was lucky enough to be able to build my dream house on my 6 family's property out Harper Road. I'm here today to urge 7 the Commissioners to please implement a total burn ban for 8 Kerr County. I am living on an 1,100 acre ranch which is 9 very dry, even in spite of the rain last night. Three years 10 ago, when we had only 14.72 inches of rainfall in Kerr County 11 and the fire activity was significant, a fire broke out on 12 our neighbor's property across the street, in a canyon behind 13 their home. Fortunately, the wind was such that it missed 14 their house, but did it burn about 30 of their acres. 15 Because of the tireless efforts of the Kerrville Fire 16 Department and the Tierra Linda Volunteer Fire Department, 17 this fire jumped our fence, but was stopped approximately 100 18 yards from the homes that my grandfather built when we bought 19 the ranch. If those had been destroyed, insurance doesn't 20 make any difference. But they were good, and they did that. 21 When I asked the firefighters what they thought had 22 caused the fire, they responded that the only thing that they 23 -- that seemed possible was that a spark from a very intense 24 fire in Hunt had blown over and landed in the canyon. Now, 25 from Hunt to where we live -- I don't know what the crow 9-19-11 22 1 flies is, but it's not an insignificant amount of time. And 2 it immediately ignited the grass. I found their explanation 3 very hard to comprehend, because that doesn't seem possible 4 to me, but they do know what they're doing; they are 5 firefighters. This incident did cause me to realize how 6 vulnerable we all are when conditions are dry and windy. 7 That spark traveled a long way, and is the reason I think any 8 outdoor burning in a barrel or charcoal barbecue pit is 9 extremely dangerous for our county. 10 I've attached a page from the National Weather 11 Service's Advanced Hydrologic protection services -- 12 Prediction Services, excuse me -- which shows Kerr County as 13 low as it can be. We're just at the -- as low as their chart 14 goes. I'm sure it's worse than that. I found it a very 15 graphic depiction of our current status. I visited with the 16 Forest Service this morning to verify that we were nowhere 17 close to breaking our drought. I knew that; I just wanted to 18 ask. He just laughed at me. But he did tell me that the 19 number one reason for the start of fires by humans in Texas 20 is burning. I have my motor home packed and I'm ready to 21 leave in case of a fire. However, should you, as our elected 22 leaders, choose to implement a total burn ban, which T.C.E.Q. 23 states you have the authority to do, the chances of my having 24 to evacuate will be reduced. Thanks for the opportunity to 25 let me share my thoughts with you. 9-19-11 23 1 JUDGE TINLEY: Thank you, Ms. Brown. 2 COMMISSIONER BALDWIN: Thank you, ma'am. 3 JUDGE TINLEY: Windy Barber from 119 McCullough 4 Ranch Road here in Kerrville. 5 MS. BARBER: Thank you for the opportunity to speak 6 today. My name is Windy Barber; I own 10 acres that adjoin 7 Northwest Hills in Precinct 1. My goal is to paint a picture 8 for you how devastating a house fire can be, and ask to you 9 ban all outdoor burning in Kerr County. July 2nd, 1982, an 10 apartment neighbor of mine in Dallas, Texas, left for the 11 weekend with her cigarette in an ashtray on her couch. I was 12 fresh out of college with a new apartment filled with 13 brand-new furniture, et cetera. I lost just about 14 everything. If you've ever lived through a fire, you will 15 never forget the impact it has on your life. I stood outside 16 the fire truck boundary and I realized all my things were 17 damaged probably beyond repair. My good luck was my mom had 18 family photos I could copy. The things from my grandparents 19 were not replaceable. 20 Fast-forward to Friday, September 2nd, at 5:50 p.m. 21 I smelled smoke on my property. I drove up McCullough Ranch 22 Road to see if there was a visible large fire from the top. 23 As I drove, it was easy to see it was my neighbor burning. I 24 phoned the Sheriff's Department to inform them my neighbor 25 was burning. Their first question was, "Are they burning in 9-19-11 24 1 a barrel?" I said, "You don't understand. I'm in the 2 county; there's a county burn ban." No, I was told, they can 3 burn in a barrel. Stunned as I was, I explained I could see 4 flames, and the man was carrying limbs to put in the barrel 5 to fuel the fire. I said, "That can't be legal," and again, 6 they replied, "If he's burning in a barrel, it's legal, but 7 we'll send someone out." I stood on the McCullough Ranch 8 Road alongside some neighbors seeing orange flames above the 9 man's head. We wondered about the devastation and loss to 10 our property and in Northwest Hills if the fire got out of 11 control. 12 September 2nd -- I'm sorry, September 12th, a dear 13 friend in Dallas e-mailed me a letter from a daughter, 14 son-in-law, and grandchildren; they had a home in Bastrop. 15 This is from Sidney Starling in Bastrop. "It's more than bad 16 down here, but we're okay and hanging in. Tahitian Village 17 on the east -- east side where they lived was the worst 18 destroyed; consequently it's the last area for reentry. We 19 found out yesterday it would be Wednesday. I want to be with 20 them when they go back in, and also need to help with the 21 kids. We will have to wear masks and gloves and boots, et 22 cetera, to even go back in. We will use sifters to try to 23 find anything. It's still smoldering in some places. I'm 24 sure you've seen the pictures." She says, "Thanks for 25 asking. Stay safe, and let's pray the rest of Texas doesn't 9-19-11 25 1 burn before this drought is over." 2 They now say we could have 18 more months of this. 3 God help us all. Later in the day, she writes -- this is 4 Shirley -- "The worst thing our family has ever gone through. 5 My heart just breaks for everyone. This is a total loss; 6 there will be nothing to salvage. Neighbors who snuck in 7 behind the barricades have reported homes that are nothing 8 but 5 feet of ash. I'm sure you've seen the pictures." 9 I would like to close with, I lost my mom this year, and all 10 my childhood things and her things are in my home on 11 McCullough Ranch Road. My work requires that I travel. When 12 I left September 8th for a job, I looked around my house and 13 I wondered if everything would still there be when I 14 returned, or if my neighbor decided he might go out and burn 15 again. And I thank you very much for your consideration. 16 JUDGE TINLEY: Thank you, Ms. Barber. Mr. Brian 17 Wright from Center Point. 18 MR. WRIGHT: Good afternoon, gentlemen. 19 COMMISSIONER OVERBY: Hi. 20 MR. WRIGHT: I have to tell you up front, I hope I 21 can make it through this. A little bit of sleep deprivation, 22 having to go out on a fire last night. It's going to add to 23 my emotional side of this. So, I'm Brian Wright. I'm a 24 resident of Kerr County, a firefighter, and vice president 25 with the Elm Pass Volunteer Fire Department, and one of 25 9-19-11 26 1 commercial prescribed burn managers for the state of Texas. 2 As a firefighter and the vice president of Elm Pass Volunteer 3 Fire Department, I would like to thank our volunteers in the 4 community for their donations and support this last weekend 5 at our annual rummage sale. We were able to nickel, dime, 6 and quarter our way to around $3,600. On a personal note, I 7 would like to thank Commissioner Overby for showing his 8 support by stopping by our rummage sale this last weekend, 9 and for his cash donation. 10 Now, in reference to the burn ban, Chief -- Chief 11 Jerry Vincent of the Elm Pass Volunteer Fire Department asked 12 me to read the following letter from him to the Commissioners 13 Court. This is on Elm Pass Volunteer Fire Department 14 letterhead. It's dated August 19th, 2011. Kerr County 15 Commissioners Court, 700 Main Street, Kerrville, Texas, 16 78028. Dear sirs, I am pleased to see that you are reviewing 17 the burn ban policy in Kerr County. Given the exceptional 18 drought conditions with which we are dealing, I believe that 19 it is important to be proactive in providing our area 20 residents and firefighters with the best fire control plans 21 possible. While there are a variety of fire causes, some 22 that we can control and some that we cannot, we should 23 address every cause that we can control; very specifically, 24 burning in a barrel and cigarettes tossed out of car windows. 25 I am concerned that during this time of exceptional drought 9-19-11 27 1 in Kerr County, that if county residents are allowed to 2 continue to burn household garbage in a barrel, that we are 3 failing to prevent potential out-of-control fires. 4 During the last six months, the experiences of my 5 department have been that the more household -- more than 6 household garbage is being burned in a barrel, that burns are 7 not being supervised by residents, and that there is wide 8 interpretation of barrel -- burn barrels with cover -- wire 9 covers. And that our department had to respond to a, quote, 10 burn in a barrel, unquote, that has become out of -- that 11 became an out-of-control fire. Two weeks ago, our department 12 responded to a fire on Elm Pass Road that was suspected to 13 have been started by a cigarette thrown out of a car window. 14 San Antonio is banning barbecue fires in their parks, and 15 fining motorists for tossing cigarettes out of their cars. 16 Our neighboring state of New Mexico stated extreme drought 17 conditions when their National Forest Service Bureau of Land 18 Management closed campgrounds to prevent campfire and grill 19 use in campgrounds. 20 In extreme conditions, public access to all NFS and 21 BLM lands has been restricted in order to prevent an 22 accidental spark from cars, R.V.'s, chainsaws and such that 23 might cause a wildfire. New Mexico has also banned outdoor 24 burning, including outdoor smoking, other potential sources 25 of sparks that could ignite fires, including welding, farm 9-19-11 28 1 and fence repair and building in this area of the county, and 2 chainsaws used to clear right-of-ways, clear brush, and trim 3 trees. Three weeks ago, one of our members had a grass fire 4 started on his property by sparks caused by a work crew 5 trimming trees along Bandera Electric power lines. 6 Fortunately, the homeowner was observing the trimming and was 7 able to reach the fire quickly with his garden hose while the 8 work crews were stamping out the fire. The outcome could 9 have been very different. 10 At the regional fire chiefs' meeting last month in 11 Fredericksburg, chiefs from around the Hill Country recorded 12 that sources of water for their firefighting have literally 13 dried up. In southeast Kerr County, there is no immediate 14 source of water for firefighting. Excuse me. Local ponds 15 and stock tanks are dry. The Guadalupe River, which is 16 barely running, is 6 miles from me and the Elm Pass Volunteer 17 Fire Department station. And while, in the last 48 hours, 18 San Antonio airport has received nearly an inch of rain, Elm 19 Pass Volunteer Fire Department district has received -- last 20 night we got another half -- another half an inch, so we've 21 gotten about 6/10 of an inch of rain. The cedars, oak trees, 22 and grasses have very low moisture content and will burn 23 rapidly from the least spark or ember. Terrain in this part 24 of the county is very hilly, and would represent -- and would 25 present difficult firefighting challenges. 9-19-11 29 1 These exceptional drought conditions and reduced 2 availability of water combine to create a public emergency 3 and a danger to firefighters and homeowners alike. Please do 4 not allow conditions to exist that could result in terrible 5 fires such as the Sheppard Rees fire, the Midway fire, the 6 spring fires near Junction, and most recently the Bastrop 7 fire. If there is information that I can provide, please do 8 not hesitate to contact me at (830) 634-7814, or by e-mail at 9 gcv1@hillcountrytelephone.net. Thank you for your 10 consideration of this matter. This is signed, Sincerely, 11 Jerry Vincent, Chief of the Elm Pass Volunteer Fire 12 Department. 13 The San Antonio Express News, on September 14 8th, 2011, from Bexar County Fire Marshal Ross Coleman, 15 explained that the Keech-Byrum Drought Index, or KBDI, is an 16 index used to determine forest fire potential. Coleman said 17 from a scale of zero to 800, KBDI in Bexar County was at 775. 18 The most recent information that I could find for the KBDI in 19 Kerr County was 783. This means that we have less than a 20 quarter of an inch of soil moisture left in the ground, down 21 to 8 inches. To emphasize the extreme conditions in Texas, 22 on September 15th, 2011, the Texas Forest Service website had 23 an article stating lawmakers, including, and I quote, 24 Governor Rick Perry, Lieutenant Governor David Dewhurst, and 25 Texas House Speaker Joe Straus requested that the Texas 9-19-11 30 1 Forest Service expedite the distribution of $27 million for 2 Rural Volunteer Fire Department Assistance program, and make 3 an additional $5 million available to pay for firefighting 4 equipment and other expenses resulting from the unprecedented 5 wildfire season this year, end quote. 6 These funds remain available due to the 7 extreme drought conditions and destructive wildfires that 8 have burned millions of acres across the state of Texas this 9 year. The most recent statistics that I have seen show that 10 3.6 million acres have burned, and approximately 4,700 11 structures have been destroyed in the state. As a resident 12 and volunteer firefighter, I would like to personally ask 13 Judge Tinley to declare a local disaster, citing the extreme 14 fire conditions in Kerr County, and ban all outdoor burning. 15 I believe that this can be done under Texas Government Code 16 Section 418.0 -- or .108, declaration of local emergency -- 17 or local disaster. And the definition of that disaster can 18 be found under Texas Government Code, Section 418.004, 19 definitions. 20 Need for this declaration became more apparent 21 last night at 8:49 p.m., when more than 20 volunteer 22 firefighters and one Sheriff's deputy were mobilized when a 23 fire was reported in the Elm Pass Volunteer Fire Department 24 district. It appears that someone started a trash fire, and 25 they put the fire out when they saw our emergency lights 9-19-11 31 1 searching for the cause of the blaze. Burning after dark -- 2 and burning after dark is against the law, and if we had been 3 able to find the source of the fire -- the source of the fire 4 and who started it, I would have asked the Sheriff's 5 Department to cite that person, as well as reported them to 6 the Texas Commission on Environmental Quality, T.C.E.Q. I 7 ask Judge Tinley to consider this declaration of local 8 disaster to help conserve the limited resources of Kerr 9 County. This declaration would help protect the majority of 10 the community that is trying to do the right thing and not 11 take advantage of the current burn ban. 12 Having asked Judge Tinley for this 13 declaration, I will now leave it up to you, the County 14 Attorney and the Commissioners. As a firefighter and 15 prescribed burn manager, I see extreme fire conditions are 16 still in place despite the recent humidity and rain. The 17 information I'm seeing is showing some of the lowest fuel 18 moistures in grasses, brush, and trees that I've seen in some 19 time. If I can help implement -- or supplement the federal, 20 state, and local fire resources that you have available, 21 please don't hesitate to contact me. Thank you, gentlemen. 22 JUDGE TINLEY: Thank you, Mr. Wright. 23 COMMISSIONER BALDWIN: Thank you, Brian. 24 JUDGE TINLEY: In anticipation of this issue -- 25 since it was brought to our attention previously, the County 9-19-11 32 1 Attorney was instructed to take as close a look as could be 2 done, and to see exactly the extent of the authority that we 3 have when it comes to burn bans. Certainly, if -- if the 4 County Attorney tells me that I have the authority to declare 5 an emergency, he feels like it reasonably complies with the 6 definition that I can ban all of those, you know, I'd 7 certainly be willing to do that. But at this point, I'm 8 going to turn it over to the County Attorney to give us what 9 he has come up with with regard to the -- the applicable 10 statutes concerning the burn ban and -- and the disaster 11 declaration. 12 MR. HENNEKE: Judge, Commissioners, thank you. 13 We're -- 14 MS. BARBER: There's a fire in Hunt right now he's 15 having to leave for. 16 MR. HENNEKE: We're talking several issues. Let's 17 clear up a few things. First of all, the way that you 18 enforce any kind of burn ban or Commissioners Court order is 19 through criminal enforcement. The Commissioners Court, as 20 you well know, doesn't have authority just to issue blanket 21 proclamations or orders. It must do so since its authority 22 is limited by statute. And so, you know, the good folks who 23 have spoken here today are very good at researching on the 24 internet, calling and talking to folks, but let's make sure 25 that we're using the right kind of jargon and terminology. 9-19-11 33 1 There's been a lot of mention about the Medina County burn 2 ban order referenced by several folks here today, and 3 adopting the total ban that Medina County has done. It's not 4 a total ban. It's a burn ban order prescribed under the 5 authority given to counties to regulate outdoor burning 6 pursuant to Local Government Code 352.081. 7 Of course, I've attached for your reference the 8 Medina, Bandera, and Gillespie County orders, all of which 9 you'll see have different forms and provide for different 10 exceptions. For example, the Medina County order that so 11 many folks have referenced and found on the internet and 12 printed off for y'all to look at allows for ceremonial fires 13 and allows for burning of brush on property cleared by heavy 14 equipment, which is certainly very dangerous. The huge 15 exception is not one that's provided for under the current 16 county burn ban order. The -- I've revised the burn ban 17 order, the form of which has been in use by Commissioners 18 Court since January 2004, to strictly track the language of 19 Local Government Code 352.081. 352.081 does provide for some 20 exceptions. Now, the exceptions that we've discussed 21 previously -- ceremonial burning, cooking/eating, residential 22 trash -- are not exceptions found under 352.081. 23 So, when I think the folks up here are saying, you 24 know, "Adopt that total ban," they're talking about the 25 County's authority to do so under 352.081, which still 9-19-11 34 1 provides for the same exceptions as are found in the 2 Gillespie County order, the Bandera County order, and the 3 Medina County order. Then, of course, some of those counties 4 have additional ones beyond that. So, I have revised the 5 Kerr County order with what was provided to you last week, 6 and request the Court to strictly track the language of the 7 statute. And I'd certainly be glad to take any questions 8 about that. It takes it straight out of the language of the 9 statute as far as the penalties, the ban, and also the 10 exceptions. 11 Now, insofar as what Mr. Wright was talking about, 12 you know, that's a separate issue. That's the one as far as 13 declaring a disaster. I did look at the statute. You know, 14 that is the authority that you can only do it for seven days, 15 and that gives, you know, the Court -- the Judge, you know, 16 authority to evacuate people from their homes; to, you know, 17 declare certain areas of the county -- you can't go there, to 18 take some very drastic measures that I guess would locally be 19 akin to, you know -- I won't say martial law, but some kind 20 of restriction like that. And the full -- you know, what was 21 on today's agenda was talking about the burn ban, outdoor 22 burning, and that's what I've provided for y'all. The 23 full -- the full effect and the authority on -- on, you know, 24 an emergency declaration that Mr. Wright mentioned, you know, 25 I think goes beyond where -- you know, it's a different 9-19-11 35 1 issue, and it's a different circumstance, and it's not one 2 that I think is -- is what we're talking about here. Now, I 3 want to stress, because I know that folks are here listening 4 to me -- the media's here and you gentlemen are here -- is 5 that, you know, the County's authority is limited by state 6 law. And, you know, we can track an order that tracks 7 352.081. 8 But I think somebody mentioned, you know, people 9 flicking cigarette butts out their window, which they 10 shouldn't do; it's incredibly dangerous. I hope anybody who 11 has, you know, half a mind won't be doing it. But, you know, 12 y'all can't ban smoking in Kerr County. And certainly, you 13 know, people can be ticketed for littering and so on and so 14 forth, but y'all's authority is set forth by statute, and 15 that's what we have to follow. That's what I will enforce 16 criminally through prosecution of offenses, and that's also 17 what -- what Rusty is -- you know, is limited by as far as 18 his law enforcement ability to enforce. So, you know, I 19 appreciate everybody's concern. The statute says what we can 20 and can't do. I've pulled and revised the order directly 21 from the statute, which takes out the whole burning in a 22 trash can of your household waste. That's discretionary, and 23 I've pulled that out, because it's not mandated by statute. 24 I will be glad to take any other questions that you gentlemen 25 have. 9-19-11 36 1 COMMISSIONER LETZ: As I read this, I mean, getting 2 it to the -- what the public is saying, their issue is that 3 this is a total outdoor burning, subject to the few 4 exceptions the state gives, such as if you're a certified 5 prescribed burn manager, you can burn. Which I don't think 6 any of those people would be burning at this moment. And 7 then for firefighter training, public utility, natural gas 8 pipeline and mining operations, and then planting/harvest of 9 agricultural crops. 10 MR. HENNEKE: Same thing as we've had before, 11 potentially, except for the ceremonial. And it's the same 12 exception that Gillespie County has, the same exceptions that 13 Bandera and Medina have. But -- you know, and I think that's 14 one -- when folks are saying a total, referring to those 15 counties, this is the statute, and those are still the 16 exceptions provided for that. But otherwise, all outdoor 17 burning, you know, will be banned. 18 COMMISSIONER LETZ: Is there something somewhere in 19 there -- I mean, I don't -- my recollection is that we track 20 the state law when we do -- the one with ceremonial, we never 21 would have come up with that. Where did that come from? 22 MR. HENNEKE: Where it came from is by straight 23 statute under the Health and Safety Code. The state has 24 given T.C.E.Q. the authority to regulate clean air, and to 25 promulgate rules as necessary for the regulation of clean 9-19-11 37 1 air. Now, T.C.E.Q. has done so through promulgation of rules 2 under the Texas Administrative Code, where, under the Clean 3 Air Act, T.C.E.Q. has banned all outdoor burning unless it 4 falls under certain exceptions. The exceptions that have 5 been referred to are exceptions under the T.C.E.Q. 6 administrative rules to their total prohibition of outdoor 7 burning, except that there is -- the last rule provides that 8 none of the T.C.E.Q. rules exempt for excuse anyone from 9 complying with all other applicable laws and orders of 10 governmental entities having jurisdiction. So, ceremonial 11 burning, cooking, heating, trash, that comes out of the 12 administrative rules that T.C.E.Q. has promulgated pursuant 13 to their authority under the Health and Safety Code with 14 regard to regulating clean air. But, you know, as I -- as I 15 researched and confirmed last week, that doesn't -- those 16 don't trump the County's authority under Texas Local 17 Government Code 352.081. 18 COMMISSIONER LETZ: So this -- this ban will 19 prohibit outdoor burning in trash barrels? 20 MR. HENNEKE: Yes, and will provide a mechanism 21 for, you know, individuals to be cited, and -- and those 22 citations referred to the appropriate courts of prosecution. 23 JUDGE TINLEY: And the only exceptions in the 24 redrafted burn ban order are those which are specifically 25 allowed under state law? 9-19-11 38 1 MR. HENNEKE: Yes, sir. 2 COMMISSIONER LETZ: I move -- 3 JUDGE TINLEY: Sheriff? 4 SHERIFF HIERHOLZER: Well, just for clarification, 5 so this ban will, as you said, ban the barrels. Will it also 6 ban outdoor cooking? Barbecue pits? 7 MR. HENNEKE: Yes. 8 SHERIFF HIERHOLZER: The ceremonial? Or not? 9 MR. HENNEKE: Yeah. 10 SHERIFF HIERHOLZER: It's going to -- 11 MR. HENNEKE: If you barbecue in your back yard, 12 you know, you can be cited. I don't know what kind of 13 ceremonial burning we have in Kerr County. 14 COMMISSIONER OVERBY: So, total ban. 15 SHERIFF HIERHOLZER: We have had some legitimate 16 ones. 17 COMMISSIONER OEHLER: Can we pick and choose what 18 we want out of that list? 19 MR. HENNEKE: Well -- 20 COMMISSIONER OVERBY: All or none. 21 MR. HENNEKE: You know, and that's where the 22 existing order comes in. I mean, the statute allows the 23 Court to ban burning in general, or of a particular 24 substance. And so, you know, I believe that the existing 25 order was within the Court's jurisdiction, you know, insofar 9-19-11 39 1 as -- as providing for trash and -- and outdoor barbecue 2 pits. Because that part, you know, pertains to the 3 particular substance. But in y'all's discretion; y'all don't 4 have to. So, you know, that -- that's exactly right, 5 Sheriff. And, you know, this applies to outdoor trash 6 burning. This applies to, you know, backyard barbecues, 7 applies to burning outside, unless you fit under one of the 8 exceptions under 352.081. 9 COMMISSIONER BALDWIN: The Class C misdemeanor, 10 that didn't change, did it? 11 MR. HENNEKE: No, that's the -- 12 COMMISSIONER BALDWIN: $500 fine, or up to? 13 MR. HENNEKE: Up to a $500 fine, correct. 14 COMMISSIONER OEHLER: Does that mean gas grills as 15 well? 16 COMMISSIONER LETZ: Bruce is not going to eat any 17 more. 18 COMMISSIONER OEHLER: Heck, I can't eat if I can't 19 barbecue. (Laughter.) I mean, I don't know how far we want 20 to go with this thing. I mean, I totally understand the -- 21 the barrel thing, because when you're burning paper and 22 stuff, there's almost no way to contain it 100 percent and 23 still make it burn. 24 MR. HENNEKE: Mm-hmm. 25 COMMISSIONER OEHLER: Unless you have an 9-19-11 40 1 incinerator or something, which most people don't have. So, 2 I mean, do you really -- I mean, I know we're in drought 3 conditions, but I also know that in my situation, I could 4 build a fire on the ground. I got nothing to burn at my 5 place left. I mean, there's nothing but rocks and dirt and 6 cactus. 7 SHERIFF HIERHOLZER: Bruce, the only comment I'd 8 like -- if y'all remember, the Sheppard Rees fire was started 9 by a barbecue pit. 10 COMMISSIONER OEHLER: I'm not saying -- I'll comply 11 with the law, whatever we decide to do. 12 SHERIFF HIERHOLZER: I don't know if a gas one 13 would be better or not, but the -- the charcoal one, which is 14 what started -- 15 COMMISSIONER OEHLER: Charcoal and wood is part 16 of -- I mean, charcoal's not here; could start a big fire 17 from those. But it's up to the Court. Well, we hope that if 18 we do this, and I feel like we probably should under the 19 conditions, I hope it won't be too long before we can lift 20 it. 21 COMMISSIONER OVERBY: Pray for rain. 22 MR. GARCIA: Another 18 months. 23 COMMISSIONER LETZ: Rob, can we, say, in two weeks, 24 if it cools off a little bit more, we get a few more light 25 rains, could we come back and allow barbecues? 9-19-11 41 1 MR. HENNEKE: Yeah. 2 COMMISSIONER LETZ: We -- 3 MR. HENNEKE: You can amend your order and provide 4 for -- you know, not just in general, but of a particular 5 substance. And -- and just as Medina County, in their 6 exception, the Medina County order which everybody is 7 bringing a copy to y'all allows for ceremonial burning, and 8 allows for burning big brush piles if you clear it with heavy 9 equipment. 10 COMMISSIONER OEHLER: You do not want anybody to 11 know that. 12 MR. HENNEKE: You know, so -- 13 COMMISSIONER OEHLER: No, I'd be willing to do it 14 for a short time, as long as we don't have it set in stone 15 for six months if it's not necessary. Or a year. 16 MR. HENNEKE: You know, a burn ban order is 90 17 days. And just as the Court only, within I think the last 30 18 days, adopted this order, it can come back any time within 90 19 days, and -- 20 COMMISSIONER OEHLER: This would be a county-wide 21 order? This wouldn't be by precincts? 22 MR. HENNEKE: County-wide and outside the municipal 23 limits, of course. You know, when we're talking about parks 24 and stuff that San Antonio is doing, you know, within the 25 city jurisdiction, you have a completely different set of 9-19-11 42 1 rules and ability to enact ordinances, and so we're talking 2 about outside the city limits as far as the authority of -- 3 of this order. 4 COMMISSIONER OEHLER: You know, it's -- you know, 5 you got to think about all sides of this. What's this going 6 to do to people that are barbecuing for a living, that -- and 7 got restaurants? 8 COMMISSIONER LETZ: If they're in the county, can't 9 do it. 10 COMMISSIONER OEHLER: Can't do it, so they can't 11 light a fire any more, even in a contained pit, self -- 12 totally contained. 13 JUDGE TINLEY: If it's outside. 14 COMMISSIONER OEHLER: If it's outside. How many of 15 those do we have? 16 MR. HENNEKE: Do we have any, or are all of them -- 17 COMMISSIONER OEHLER: Bill's Barbecue is one. 18 Buzzie's is one. That's in the city. 19 COMMISSIONER BALDWIN: Oh, we've got to talk about 20 this, then. 21 COMMISSIONER OEHLER: You know, you've got -- we've 22 got two or three in Ingram. 23 SHERIFF HIERHOLZER: Buzzie has his catering deal. 24 COMMISSIONER BALDWIN: I just think under the 25 conditions that we have out there right now, those things 9-19-11 43 1 don't -- they don't rise to the level, in my opinion. 2 COMMISSIONER OEHLER: Yeah. 3 COMMISSIONER BALDWIN: We need to adopt this order 4 and go on. 5 JUDGE TINLEY: Is that a motion, Commissioner? 6 COMMISSIONER BALDWIN: If we're through taking 7 swings at it, yeah. 8 JUDGE TINLEY: I'm sorry? 9 COMMISSIONER BALDWIN: Yes, it is. 10 JUDGE TINLEY: All right. Okay. 11 COMMISSIONER LETZ: Second. 12 JUDGE TINLEY: We have a motion and a second to 13 adopt the modified burn ban order as presented by the County 14 Attorney, which includes only those exceptions specifically 15 authorized under state statute under Local Government Code, 16 Section 352.081. Is that correct, counsel? 17 MR. HENNEKE: Yes, sir. 18 COMMISSIONER OEHLER: Let me ask another question 19 another way before we leave that. I mean, these -- I'm just 20 talking -- I'm mainly concerned about the -- you know, 21 somebody being in business, more so than I am personally, or 22 for anybody that can cook at their house and not use an 23 outdoor pit. But what -- what is the -- what is the 24 definition of "outdoor," I guess? I mean, what if you're out 25 underneath a cover and on a concrete slab? Does that exempt 9-19-11 44 1 anything? Or it's still -- they're out of business? I mean, 2 this is -- this is not something that -- you know, there's a 3 whole lot of difference between somebody going out on the 4 side of their house where a patch of grass is and throwing 5 some wood in a pit, whenever you got people that are making a 6 living. 7 SHERIFF HIERHOLZER: Yeah. But, Bruce, the only 8 issue I have, if you start putting a lot of different 9 constraints on it, different little twists to it, there's no 10 way my officers can try and legitimately and equally enforce 11 it county-wide. 12 COMMISSIONER OEHLER: Could we exempt restaurants? 13 Exempt barbecue -- you know, commercial or -- or barbecue 14 businesses? I mean, you're putting them out of business, 15 folks. 16 SHERIFF HIERHOLZER: Yeah. 17 COMMISSIONER BALDWIN: Well, they can also start 18 fires, though. That's the thing. We're talking about 19 starting a fire and burning things up. I mean, they would -- 20 they could do that just as well as a -- well, me and my 21 barbecue pit. 22 COMMISSIONER OEHLER: Most of their stuff is under 23 cover and on concrete, and there's nothing around. But I 24 just can't -- man, I can't go along with banning it on -- on 25 businesses. I mean, I can do it on the public, 'cause I'm 9-19-11 45 1 one of them. But -- 2 COMMISSIONER BALDWIN: Counselor, it's a 90-day 3 deal like we've always done? 4 MR. HENNEKE: Yes, sir. 5 COMMISSIONER BALDWIN: And -- 6 MR. HENNEKE: That's the longest you can adopt 7 them, but you can always come back earlier. 8 COMMISSIONER OVERBY: Reevaluate it. 9 COMMISSIONER BALDWIN: And Bruce asked the question 10 a while ago, and we all laughed, but I didn't get the answer. 11 Is it a state -- county-wide thing, or can it be precinct by 12 precinct? 13 JUDGE TINLEY: Unincorporated areas of the county. 14 COMMISSIONER BALDWIN: Total county. 15 COMMISSIONER OEHLER: Total. 16 COMMISSIONER LETZ: But -- 17 COMMISSIONER BALDWIN: So, if he gets 18 inches of 18 rain and I don't get anything, I can't put the burn ban -- 19 just -- 20 MR. HENNEKE: Well, this -- this still maintains 21 the exception that's been in place for a long period of time. 22 It gives the Commissioners, in their individual precincts, 23 the discretion to suspend the ban -- you know, the burn ban. 24 COMMISSIONER BALDWIN: Okay. That's what I'm 25 looking for. 9-19-11 46 1 JUDGE TINLEY: Oh, yeah. 2 COMMISSIONER BALDWIN: Thank you. 3 MR. HENNEKE: It didn't remove that. 4 COMMISSIONER BALDWIN: That's fine. Because 5 that -- you know, I mean, Bruce could get a huge rain and I 6 could get none. You know, and that's usually the way it is. 7 They're -- you know, they're -- all these guys team up 8 against me, but it's okay. 9 COMMISSIONER LETZ: Judge? 10 COMMISSIONER OEHLER: Just -- 11 COMMISSIONER LETZ: Mr. Wright had a comment. 12 JUDGE TINLEY: I know. I was waiting till we get 13 through with this part of the discussion. Mr. Wright, you 14 had a point you wanted to make? 15 MR. WRIGHT: Two things under 352. And I think 16 the Commissioners -- the Judge and the Commissioners can 17 decide whatever exceptions they want to do. They can say 18 that an established restaurant or eating establishment can be 19 exempt from a burn ban. 20 COMMISSIONER OEHLER: Well, if we can do that, I'm 21 -- I'll go for it. But, man -- 22 MR. WRIGHT: I don't see why you can't. 23 COMMISSIONER OEHLER: They've been doing this for 24 years and years and years, and all of a sudden, they can't 25 barbecue 'cause they can't build a fire. 9-19-11 47 1 JUDGE TINLEY: Well, Commissioner, are you 2 suggesting to offer an amendment? 3 COMMISSIONER OEHLER: I would offer an amendment, 4 that we exempt commercial establish -- barbecue 5 establishments. 6 COMMISSIONER LETZ: I'll second that. 7 JUDGE TINLEY: We have a motion and a second to 8 amend the -- the proposed order that we already have a motion 9 and second on, to exempt commercial barbecue establishments. 10 MR. HENNEKE: Right. And so that you -- I'm going 11 to hate to parse words here, but how do you, I mean, define 12 that? I mean, is it -- 'cause I don't want to have to 13 argue -- I know Rusty doesn't want to have to argue with 14 people over, you know, folks -- reckless folks that just want 15 to do whatever the heck they want, and are looking for a way 16 to argue that they are, you know, above the law and not 17 subject to its enforcement. And so, you know, when he goes 18 out -- 19 COMMISSIONER OEHLER: I don't think that's real 20 hard to take exception. There's not that many of them, but 21 they are -- I mean, that's where they make their living. 22 MR. HENNEKE: I'm not arguing with it, 23 Commissioner. I just want to make sure we can enforce it as 24 intended. 25 COMMISSIONER OEHLER: Right. 9-19-11 48 1 MR. HENNEKE: But also prosecute it, you know, 2 against the -- you know, the guy down the road that gets his 3 buddy to give him a dollar so he can cook hamburgers and 4 claim that's he's a commercial establishment. 5 SHERIFF HIERHOLZER: Well, I don't think it would 6 be that difficult for us to enforce with that exception, 7 Bruce. And I think at that point, if Buddy down the road 8 decides, you know, when my officers write him a citation for 9 it, "Well, I'm an established..." That's an issue he can 10 argue in court. 11 COMMISSIONER OEHLER: Yeah, he can argue in court. 12 SHERIFF HIERHOLZER: Then the County Attorney can 13 figure out whether or not he is or not. 14 COMMISSIONER OEHLER: We know the places; we know 15 the people that own them, and they're not all friends of 16 mine. Doesn't matter. It has to do with the fact you're 17 taking away somebody's ability to make a living. 18 SHERIFF HIERHOLZER: Now, the only other thing -- 19 this may not fall under here, and in my experience -- and I 20 just would like to ask this before this thing's finally voted 21 on. When I traveled one time to another state, and they were 22 in a drought condition like this, they also banned all of the 23 outdoor -- as far as on private property, welding on fences 24 and that, up to a certain time of day. Because after about 25 -- or, you know, you could do it from sunup to 11:00, and you 9-19-11 49 1 couldn't do it after 11:00 because of the -- the humidity 2 went down and the heat came up. As all of y'all know, 3 several of our fires that we have had in the last number of 4 years have been due to fence welders working on fence lines. 5 There's a lot of that. I don't know if that can be 6 researched and if that's even possible that it could be done 7 in this same type of deal, but if it could, I feel this is 8 the appropriate time to try and address it. I don't mean to 9 put welders out of business, but during a certain -- you 10 know, the -- do it during the early morning, but not during 11 the late afternoon when we get the heat. 12 COMMISSIONER OEHLER: Well, that's not part of what 13 we're voting on, correct? 14 MR. HENNEKE: Right. And the -- 15 SHERIFF HIERHOLZER: Not under outdoor burning; 16 it's welding. 17 MR. HENNEKE: Right. There has to be -- I mean, 18 the County Attorney's office in 2009 researched the issue of 19 whether or not the Court, through its burn ban authority, 20 could prohibit or regulate outdoor welding, and the answer 21 published to the Court at the time was no. You know, that's 22 not outdoor burning, nor is it something enumerated under the 23 Local Government Code on the regulation of burning that the 24 Court has to prohibit. Certainly, it's dangerous. But, 25 Rusty, I think it's been looked at before, and I don't think 9-19-11 50 1 the authority exists under this statute to -- 2 SHERIFF HIERHOLZER: That's fine. I just thought 3 it ought to be brought up at some time. 4 COMMISSIONER BALDWIN: So, we're talking about 5 exempting places that people make a living at? It is -- 6 COMMISSIONER OEHLER: That's what I'm saying. 7 Commercial establishments that make their living -- 8 COMMISSIONER BALDWIN: Commercial establishments. 9 And what's a commercial establishment? 10 COMMISSIONER OEHLER: Barbecue -- 11 MR. HENNEKE: Restaurants. 12 COMMISSIONER OEHLER: Either restaurants or 13 barbecue -- 14 COMMISSIONER OVERBY: Something that has an 15 establishment license to make them an established business. 16 COMMISSIONER BALDWIN: Does Bill's Barbecue have a 17 license? 18 COMMISSIONER OEHLER: Far as I know. They're in 19 the city. 20 COMMISSIONER BALDWIN: Are they required to have a 21 license? 22 (Multiple people speaking.) 23 THE REPORTER: One at a time, please. 24 JUDGE TINLEY: Good, we got nobody. That's great. 25 COMMISSIONER OEHLER: Well -- 9-19-11 51 1 JUDGE TINLEY: Silence is golden. 2 COMMISSIONER LETZ: I think the -- the way it's 3 going to have to work -- and the County Attorney may not like 4 it. I think Rusty errs on writing tickets, and the County 5 Attorney has to figure out if it's an establishment. 6 MR. HENNEKE: I don't mind prosecuting, I mean, if 7 the citations all -- you know, as long as they're cited by 8 law enforcement pursuant to the burn ban. I've never been in 9 the restaurant business, but I do believe that they have to 10 pay sales tax, so -- 11 COMMISSIONER OEHLER: They do. 12 MR. HENNEKE: -- I think the easy way to define a 13 commercial establishment would be, you know, a restaurant 14 that -- that -- 15 JUDGE TINLEY: Has a permit. 16 MR. HENNEKE: -- pays sales tax to the State of 17 Texas as part of its definition. 18 COMMISSIONER OEHLER: That will take care of the 19 ones in the city and outside. 20 MR. HENNEKE: Well, in the city, we can't -- 21 COMMISSIONER OEHLER: No, I meant outside the city. 22 MR. HENNEKE: That's -- Ingram and Kerrville both 23 are incorporated municipalities. 24 COMMISSIONER OEHLER: 'Cause you got the Hunt 25 Store, and you got -- you got a lot of places that are 9-19-11 52 1 cooking barbecue that sell it, man. 2 MR. BOLLIER: What about those places on 41? 3 COMMISSIONER OEHLER: What places on 41? 4 MR. BOLLIER: There's a place on 41 right before 5 you get to Garven Store, and there's another place on 41 as 6 you go on the other side as you head toward Rocksprings. 7 COMMISSIONER OEHLER: That's out of Kerr County. 8 MR. BOLLIER: Okay, that's out of Kerr County. The 9 other one isn't. 10 JUDGE TINLEY: Mr. Wright? 11 COMMISSIONER OEHLER: Garven Store is not Kerr 12 County. 13 JUDGE TINLEY: Mr. Wright? Mr. Wright, did you 14 have any other points you wish to make? 15 MR. WRIGHT: Well, I had another point, but I also 16 wanted to clarify -- get you guys to clarify exactly what 17 you're going to be voting on also under 352, which I didn't 18 understand. I do want to clarify with the County Attorney 19 that under the Texas Government Code, the declaration of 20 local emergency, the County Judge can do that for seven days, 21 and then the County Commissioners would have to be involved 22 in extending that declaration of emergency. So -- but that 23 would -- basically, under that particular code, you could 24 stop all outdoor burning. Under 352, there could still be 25 exceptions. But it sounds like you guys are working on those 9-19-11 53 1 exceptions, and I appreciate that. Thank you. 2 JUDGE TINLEY: Thank you. 3 MR. HENNEKE: Well and the declaration of 4 emergency, we can look at it at a future time, but I don't 5 believe that that's properly noticed for today's -- that's 6 separate from the outdoor burning. 7 JUDGE TINLEY: That was my understanding, that it 8 was outside the agenda item. 9 MR. HENNEKE: Yes, sir. 10 JUDGE TINLEY: Okay. 11 COMMISSIONER OVERBY: Just say that -- just 12 excluding what Bruce said and what the motion -- what the 13 second was here, just if you have a food establishment 14 license, and that's their business that they're doing. 15 COMMISSIONER LETZ: There's no such thing as a food 16 establishment license that I'm aware of. 17 COMMISSIONER OVERBY: I believe when you go into a 18 restaurant, you got to have your big -- 19 MR. GARCIA: No, we don't have food establishment 20 licenses. The Texas Department of -- 21 COMMISSIONER OVERBY: Health permit's all we have? 22 MR. GARCIA: They come in, and you can get an 23 inspection through them, but there's no licenses that we have 24 that are required for restaurants outside of the -- 25 COMMISSIONER LETZ: I don't remember a health 9-19-11 54 1 certificate. 2 SHERIFF HIERHOLZER: I think that's just -- I agree 3 with Jonathan. I think on that, as far as the prosecution 4 part of it goes, it's going to be up to the County Attorney 5 to be satisfied, and possibly even a jury at that point, as 6 to whether that was a food establishment or not. But I think 7 on the officer's standpoint, it's going to be pretty obvious 8 whether it is a restaurant or it's not a restaurant. 9 COMMISSIONER OEHLER: Yeah. 10 SHERIFF HIERHOLZER: And if it doesn't appear to be 11 a restaurant, doesn't have any real claim to it, then it's -- 12 in my opinion and enforcement, it's not going to be. After 13 that, it comes to the prosecution on what can or can't be 14 prosecuted. 15 MR. GARCIA: Then you might have a line of people 16 lined up at the County Clerk's office filing d/b/a's to say 17 that they are some type of food establishment. 18 COMMISSIONER LETZ: Yeah, but -- 19 MR. HENNEKE: Let's deal with this; let's not deal 20 with absurd situations here. 21 JUDGE TINLEY: One at a time. 22 SHERIFF HIERHOLZER: The only other thing I would 23 ask is that I know we've got the Times here, but I think for 24 at least the remainder of this week -- this is a major change 25 in it, especially on outdoor barbecue pits, and I would 9-19-11 55 1 rather -- I've only got five officers on duty at a time. 2 After this gets out, I'd rather we try and educate the public 3 through the media as much as we can. Let the Judge do it, as 4 it's his order or whatever, to inform them about this new 5 ordinance. 6 JUDGE TINLEY: Have you got a sound truck, Sheriff? 7 SHERIFF HIERHOLZER: Sure don't. You can do your 8 interviews and that with the media, Judge. I just think it 9 needs to be published as much as we can -- 10 JUDGE TINLEY: Well, sure. 11 SHERIFF HIERHOLZER: -- possibly get it out. 12 JUDGE TINLEY: Yeah. 13 COMMISSIONER OEHLER: Pray for rain and hope this 14 doesn't have to last very long. 15 JUDGE TINLEY: There you go. 16 COMMISSIONER BALDWIN: So, we got an amendment on 17 the table? 18 JUDGE TINLEY: Yeah, the amendment's on the table. 19 Any further question or discussion on the amendment to exempt 20 commercial barbecue establishments? 21 COMMISSIONER LETZ: Food. 22 COMMISSIONER OEHLER: Food. 23 JUDGE TINLEY: Commercial food establishments. 24 COMMISSIONER OEHLER: 'Cause some of them do 25 barbecue steaks and stuff outside. 9-19-11 56 1 COMMISSIONER OVERBY: Okay. 2 JUDGE TINLEY: Okay, commercial food 3 establishments. 4 COMMISSIONER OEHLER: Yeah. 5 JUDGE TINLEY: All right. All in favor of the 6 motion to exempt commercial food establishments, signify by 7 raising your right hand. 8 (The motion carried by unanimous vote.) 9 JUDGE TINLEY: All opposed, same sign. 10 (No response.) 11 JUDGE TINLEY: That amendment does carry. With 12 respect to the order itself, with that amendment attached, 13 any further question or discussion? All in favor of the 14 motion, signify by raising your right hand. 15 (The motion carried by unanimous vote.) 16 JUDGE TINLEY: All opposed, same sign. 17 (No response.) 18 JUDGE TINLEY: Motion does carry as amended. All 19 right, gentlemen. I think that's all we got on the agenda 20 for today. 21 COMMISSIONER BALDWIN: Thank you, Mr. Attorney. 22 JUDGE TINLEY: Anything else? We're adjourned. 23 (Commissioners Court adjourned at 2:15 p.m.) 24 - - - - - - - - - - 25 9-19-11 57 1 STATE OF TEXAS | 2 COUNTY OF KERR | 3 The above and foregoing is a true and complete 4 transcription of my stenotype notes taken in my capacity as 5 official reporter for the Commissioners Court of Kerr County, 6 Texas, at the time and place heretofore set forth. 7 DATED at Kerrville, Texas, this 28th day of September, 8 2011. 9 10 JANNETT PIEPER, Kerr County Clerk 11 BY: _________________________________ Kathy Banik, Deputy County Clerk 12 Certified Shorthand Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 9-19-11