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1984 11 14 CC Minutes, Special41114 -1 MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF BAYTOWN November 14, 1984 The City Council of the City of Baytown, Texas, met in special session on Wednesday, November 14, 1984, at 5:00 p.m. in the Council Chamber of the Baytown City Hall with the following attendance: Fred T. Philips Jimmy Johnson Perry M. Simmons Ron Embry Roy L. Fuller Gerald Dickens Allen Cannon Fritz Lanham Larry Patterson Randy Strong Eileen P. Hall Councilman Councilman Councilman Councilman Councilman Councilman Mayor City Manager Assistant City Manager City Attorney City Clerk The meeting was called to order with a quorum present, afterwhich the following business was conducted: Consider Proposed Resolution No. 895, Casting the City of Baytown's Ballot for Director of Harris County Appraisal District Nominees to fill the position for Harris County Appraisal District Director are as follows: 1. Marta Greytok, Mayor of Taylor Lake Village; 2. Gary Jones, Baytown's nominee who is employed for Brown & Root, Inc.; 3. Samuel D. Sims, Alderman in Spring Valley. Councilman Dickens moved to adopt the resolution casting the City of Baytown's ballot for Gary Jones; Councilman Philips seconded the motion. The vote follows: Ayes: Council members Philips, Johnson, Simmons, Embry, Fuller and Dickens Mayor Cannon Nays: None RESOLUTION NO. 895 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, CASTING ITS VOTE FOR THE OFFICE OF DIRECTOR HARRIS COUNTY APPRAISAL DISTRICT, FOR THE UNEXPIRED TERM ENDING DECEMBER 31, 1985, VACATED BY FRED HARTMAN. 41114 -2 Minutes of the Special Meeting - November 14, 1984 Hear Appeal of Denzil Shirley, dba Shirley's Wrecker Service from Decision of the Auto Wrecker Committee Mayor Cannon called the public hearing to order and explained that the reason for the hearing is that Mr. Shirley had filed an appeal from the decision of the Auto Wrecker Committee to levy a 30 -day suspension. All parties were in attendance and announced ready to proceed. All persons desiring to testify at the hearing were sworn by Mayor Cannon. Don Smith, attorney for Denzil Shirley, requested that the record reflect that Mr. Shirley received official notice from the Legal Department, Baytown, Texas, on October 12, 1984, of the 30 -day suspension by the wrecker committee and had timely filed his notice of appeal on October 25, 1984. Gary Smith, attorney for the city, responded that that statement reflects the timing accurately. He then explained that the hearing surrounds the incident of an auto accident that occurred in Baytown at the intersection of West Main and Lee Drive where a vehicle struck a telephone pole or some other fixed object. The driver of the vehicle left the scene and returned later when officer Turner returned to the scene a second time to investigate the accident. Upon returning to the scene, the officer found one of the wreckers from Shirley's Wrecker Service attached to the vehicle. The police department had not dispatched a wrecker to the scene of the accident. The ordinance provides that until a wrecker is called by the police department, no wrecker company is to appear within 500 feet of the accident. Those are the allegations. He stated that he would call Officer Turner as a witness, along with the driver of the vehicle and Bradley Shirley. Also, possibly Raymond LeDay would be called. Don Smith requested that he be allowed to present his opening statement, if any, after the city had presented its case. Mayor Cannon granted that request. Officer Bill Turner, in response to questioning, stated that he is an employee of the Baytown Police Department and that on August 31, 1984 he did in fact work an accident near the intersection of Lee Drive and West Main at about 11:35 a.m. When the officer arrived the truck was against the telephone pole, 2 to 3 feet off the curb, the driver, Juan Rodriguez, not present, but his boss was. Therefore, the officer requested that the boss get the driver to return to the scene in order that the accident could be properly investigated. The officer called dispatch to inform them that he would be receiving a call to return to the scene and that he needed to be informed of the call. The officer was gone 5 to 10 minutes when he was contacted to return to the scene. Upon arriving at the scene of the accident, Shirley's Wrecker was attached to the truck, and the truck had been moved from the pole about five feet away. The operator of the wrecker was Bradley Shirley. 41114 -3 Minutes of the Special Meeting - November 14, 1984 Don Smith pointed out that the driver of the vehicle was in error having left the scene of the accident in the first place, but the officer pointed out that the boss was at the scene. Don Smith countered that since the officer had been to the scene of the accident and left, one could assume that the accident had been worked, that the vehicle was driveable at the time, but later became inoperable. In that case, the wrecker driver could assume that he was within the legal boundaries to remove the truck. Gary Smith pointed out that in cases where there is front end damage, the officer is to sign a slip prior to the wrecker driver being allowed to pull the vehicle. Officer Turner indicated in questioning from Don Smith that the wrecker operators are aware that in the case of an accident, the wrecker must be dispatched by the police department which was not done in this case. However, Mr. Smith countered that once the accident is abandoned, that is to say that all the paper work has been completed and the officer leaves the scene thinking that the vehicle is operable, then the wrecker company may be called out by the owner. The officer responded in the affirmative, but added that he was not aware of any incident like that occurring. Juan Rodriguez, driver of the vehicle, testified that on August 31, 1984 he did have an accident at the inter- section of Lee Drive and West Main, Baytown, Texas. He did leave the scene of the accident and when he returned, the wrecker was there. Bradley Shirley, driver for Shirley's Wrecker Service, testified that he was dispatched by Shirley's Wrecker Service on the 31st day of August, 1984 to pick up a vehicle at the intersection of Lee Drive and West Main. Mr. Shirley stated that when he arrived at the scene, he did ask if the police had been there and one of the men told him, "yes." Therefore, he was hooked up to the truck to remove the vehicle when the officer arrived on the scene. The officer informed him that the accident had not been worked, but Mr. Shirley stated that he did not intentionally violate the ordinance, because up to this point he thought that the accident had been worked. Bob Merchant, Assistant Chief of Police, explained that the procedure at the scene of an accident is for an officer to be dispatched to the scene and for that officer to call dispatch after investigation of the accident for an auto wrecker if one is necessary. He confirmed that it is policy for the officer to remain at the scene of the accident and that he would have to speak with the officer to determine why on this occasion the officer left the scene. Don Smith commented that -then pursuant to that policy, one could assume upon arriving at the scene of an accident where an officer had been that the investigation was completed. However, Chief Merchant disagreed stating that all the wrecker operators are aware that the investigation must be conducted by the police department and that the police department must dispatch the wrecker to the scene of the accident which was not done in this case. 41114 -4 Minutes of the Special Meeting - November 14, 1984 Raymond LeDay, employee of Ted's Supply, testified that he had received a call from a charge customer requesting that a wrecker service be dispatched to pick up a truck owned by the company that had had an accident at the intersection of Lee Drive and West Main. Mr. LeDay verified that he had asked the woman who had called if the police had been out and was told that everything was over with. Therefore, he called Denzil Shirley to pick the truck up. Denzil Shirley, dba Shirley's Wrecker Service, testi- fied that when he talked with Mr. LeDay he too inquired if the police had been out and if everything was over with and that Mr. LeDay had said that it was. He testified that he had been in the wrecker business for 21 years and that he did not check with the police department to determine if the accident had actually been worked. The reason that he did not was that Mr. LeDay had indicated that the accident had been worked and that the truck was now inoperable. He testified further that he had not knowingly violated the wrecker ordinance. He said that since he had been called by Mr. LeDay and since there was no policemen on the scene, he felt that it would be reasonable to assume that the accident had been worked and that it was proper to remove the vehicle. In his closing comments, Don Smith stated that Mr. Shirley or his employee have been charged with intentionally and knowingly violating the wrecker ordinance. A hearing was held on October 10, 1984 before the wrecker committee where Mr. Shirley was not represented by counsel and that body heard less evidence than what was presented to Council, and upon that evidence found Mr. Shirley intentionally violated the ordinance. Mr. Smith contended that the crucial point here is whether Mr. Shirley intentionally violated the ordinance, not whether the ordinance was violated. Therefore, he requested that Council find that Mr. Shirley did not intentionally violate the ordinance, nor did he commit an act which warranted penalty imposed. Gary Smith contended that the wrecker was intentionally at the scene of the accident without having been dispatched by the Baytown Police Department, that the wreck was intentionally loaded onto the wrecker and that the wrecker was intentionally within 500 feet of the accident. He pointed out that Mr. Shirley had been in the wrecker business over 20 years, and in fact, Mr. Shirley was in- strumental in drafting the wrecker ordinance. Mr. Shirley knows that in order for a wrecker to be at an accident scene that wrecker must be dispatched by the police depart- ment. Brad Shirley upon arriving at the scene should have made a logical conclusion that the accident had not been worked when the truck was still attached to the telephone pole, and there was no police officer on the scene to authorize the removal of the vehicle. Mr. Shirley did not take due precaution to assure that the ordinance was not violated. A call to the police department could have substantiated whether the accident had been investigated. The ordinance must be enforced, if not the police department will have great difficulty at the scene of an accident. 41114 -5 Minutes of the Special Meeting - November 14, 1984 Council inquired why the officer had elected to leave the scene of the accident. Officer Turner responded that the man at the scene had stated that it would be at least 30 minutes before the driver could be back; therefore, rather than wait 30 minutes, the officer instructed the man to get the driver back, and he would return at that time to investigate the accident. However, within 5 to 10 minutes, the officer received a call to report back to the scene and at that time, Shirley's Wrecker was already hooked to the vehicle. During the discussion of Council that followed, Council felt that there had been a breakdown in communication when the officer left the scene a series of things took place. Home office called for a wrecker, Shirley was told the accident had been worked, Brad was dispatched and due to communiciation problems with the men on the scene, felt that the accident had been worked. Council felt that Mr. Shirley should have contacted the police department to verify the call, but Council also felt that the officer should not have left the scene of the accident and that the driver should have been cited for leaving the scene. Gary Smith pointed out that although the driver left the scene, someone was present to answer questions and the driver had been cited for leaving the roadway and hitting a fixed object. In accident cases, the officer does not write a citation for every offense, but the one on which the case can be made. Doug Traylor, teacher of auto mechanics at Ross S. Sterling High School, reported as to Mr. Shirley's excellent character. Dickey Dunman, Dickey's Wrecker Service, reported that he did not monitor police calls because at one point the point was brought up that the wrecker companies in general monitor police calls. Council discussed at great length what appeared to be a series of breakdowns in communication, and Councilman Johnson moved to suspend Mr. Shirley's permit for three days; the motion died for lack of second. Councilman Dickens moved to dismiss the charges due to extenuating circumstances; Councilman Philips seconded the motion. The vote follows: Ayes: Council members Philips, Simmons and Dickens Nays: Council members Johnson, Embry, and Fuller Mayor Cannon Councilman Embry moved to find Mr. Shirley in technical violation of the ordinance and to provide a penalty of zero days suspension of his operating permit; Councilman Fuller seconded the motion. The vote follows: 41114 -6 Minutes of the Special Meeting - November 14, 1984 Ayes: Council members Johnson, Simmons, Embry, Fuller and Dickens Nays: Councilman Philips and Mayor Cannon Adjourn There being no further business to be transacted, the meeting was adjourned. Eileen P. Hall, City Clerk