Since the writing of this Nerditorial, County Council has delayed introduction of AB2010-143a for reasons not directly related to the concerns expressed here.
[from an e-mail I wrote to the County Council on March 30, 2010]
To the County Council:
There is language in AB2010-143a that is of unusual concern to me as a citizen. These concerns are expressed in this document.
I apologize for the length of the document, but to paraphrase Mark Twain... I didn’t have enough time to be brief.
The concerns I have with specific parts of AB2010-143a should not be mistaken for a criticism of any other portions of AB2010-143a.
The Four Vote Standard
Charter 2.22
“Council action shall require at least a majority of the entire Council except where two-thirds vote is required, in which case two-thirds of the entire Council shall be necessary.”
Majority description: “a majority of the entire council”.
Parliamentary meaning: a majority of the entire membership, present and absent.
“A majority of the entire council” is a universally recognized form of a qualified majority, which appears in both Robert’s Rules of Order and Sturgis. And it has one specific meaning: A majority of the membership, present and absent. There are seven members of Council, so a majority of the entire council is normally four votes.
And it is an appropriate qualified majority for all legislative actions that the County Council can take.
However, the doctrine that requires four-votes-no-matter-what to take literally any council action is absurd, and I aim to prove it right here and now.
I shall begin with some basics...
Basic Parliamentary Motions vs Four-Votes-No-Matter-What
Unanimous Consent Possible Requirement to Take a Recess
Imagine that there are four members present at a county council meeting. Barely a quorum. And now imagine that during the meeting a member moves to take a ten minute recess. If one of those four members doesn’t vote in favor of the motion to recess, then for lack of at least four votes the council is unable to take a recess.
That’s absurd. That’s also unlikely. But that’s also council action. That’s four-votes-no-matter-what. That means at a meeting with only four members, the county council needs unanimous consent to take a recess.
How about a motion to adjourn?
Same meeting, same number of council members. After it becomes clear that the council is unable to dispose of anything more than the consent agenda items, one member makes a motion to adjourn the meeting early. If another member decides to vote against adjourning the meeting early, then for lack of at least four votes the meeting can’t be adjourned before its scheduled time.
That’s absurd on an epic scale. That’s also extremely unlikely. But that’s also council action. That’s four-votes-no-matter-what. That means at a meeting with only four members, the county council needs unanimous consent to adjourn a meeting early.
The implication that one member of Council has the power to subvert the will of the majority of the council on these simple internal procedural matters based on a stubbornly dogmatic read of a single sentence in the Whatcom County Charter goes beyond absurd and actually exceeds the legal limits of the authority of the County Council and any individual member of that Council.
No single member of the County Council, under any legal circumstances, can force any other member of the Council to be confined to the council chambers if that other member prefers not to remain in those chambers... no matter what the Charter says about how many votes are necessary for council action.
More to the point, the other three members who voted yes to adjourn the meeting early will almost certainly vote with their feet and just go home shortly after the one dissenting member votes no. And none of those three Members of Council will wait for permission from legal staff to do so. Meeting adjourned. And four-votes-no-matter-what would be quickly replaced by four-votes-don’t-matter-tonight.
I have just described a clear, simple, and inherent exception to the four-votes-no-matter-what doctrine.
And if there is even a single exception possible to the four-votes-no-matter-what doctrine, then the doctrine collapses on itself.
And if there is even one exception, there may be more.
In the Whatcom County Code itself... I have found seven explicit exceptions.
Statutory exceptions to Four-Votes-No-Matter-What in the WCC
These seven explicit exceptions to the Four-Vote-Standard are:
- Basic Parliamentary Motions
- Initiation of Comprehensive Plan Amendments
- Overturning a Hearing’s Examiner’s Decision on Appeal
- Requesting Review of Construction Standards
- Confirmation of Executive Appointments
- Appointment (and Removal) of Non-Council Members to Boards, Commissions, and Committees
- Filling Vacancies in Elected Offices
Note: All other actions taken by the County Council are assumed to be subject to the majority standard described in section 2.22 of the County Charter. The seven circumstances I’m describing are the only exceptions to the so-called four vote standard that I am able to find.
Basic Parliamentary Functions
WCC 2.20.040 (E)
Majority description: Varies. Sturgis automatically defers to an organization’s bylaws on the votes needed to pass all main motions. Sturgis does not automatically defer to an organization’s bylaws on the matter of secondary motions.
Parliamentary definition: dependent on type of motion.
These are motions that call for votes that are common to all groups that use parliamentary procedures.
The Sturgis Handbook is the tool the Whatcom County Council uses to conduct its business. It is codified into the WCC, and has all the information necessary to allow the transaction of virtually all routine business at a council meeting.
Any main motion, which is pretty much everything that the Charter is concerned with, must be transacted in accordance with an organization’s bylaws. (Section 2.22 of the Charter.)
However, all secondary motions found in Sturgis are supposed to use the standards described in Sturgis.
The point of this is so that each county council in North America doesn’t have to write its own parliamentary rules from scratch on commonly understood concepts like going into recess and moving to adjourn into its municipal charter.
In the case of motions to recess or adjourn, the majority needed is an unqualified majority vote... just like every other deliberative body smaller than a state legislature in the civilized world.
The absurdity for most of this category was described in detail at the beginning of this document.
However, there is the matter of selecting a chair and other officers for the Council. WCC 2.02.070.
The Council needs to organize itself at the beginning of the year more than it needs to get at least four votes when doing the organizing.
If, for any reason, only four members are able to attend that meeting, the Council must be able to select its officers without ever requiring unanimous consent to do so.
The Council must have a presiding officer at all times, and it can’t be assumed that the presiding officer from the previous calendar year will even remain in office from year to year. This isn’t about the Charter. This is a fundamental principle of parliamentary law. A deliberative body must have a presiding officer to conduct business. The Whatcom County Council can’t exempt itself from that basic requirement just because of one line in its own municipal charter.
Initiation of Comprehensive Plan Amendments
WCC 2.160.050 (A)
Majority description: “by majority vote”
Parliamentary definition: A majority of the members present and voting.
Note: The Council may only initiate this action once per year, and at one specific meeting... the meeting on or about March 1st.
If the Council were to hold itself to the four-votes-no-matter-what standard, and there were barely a quorum present at the March 1st meeting... then one member of council would have the power to prevent the County from even trying to amend its Comprehensive Plan for an entire calendar year simply by abstaining or voting no on a single vote at a single meeting.
If the County Council can achieve a quorum, it should be able to try to amend its Comprehensive Plan that calendar year without ever needing to achieve unanimous consent.
The absurdity here is that this would grant a single member of council absolute veto power over the County Council’s own decision to even attempt to amend its comprehensive plan for an entire calendar year.
It is important to note that actually approving an amendment to the Comp Plan is an entirely different action which must be done by ordinance and would require the four-vote-standard.
Overturning a hearing’s examiner’s decision on appeal
WCC 21.02.030 (3)
Majority description: “a simple majority of the council”
Parliamentary meaning: A majority of the members present and voting. This is a badly worded way of referring to an unqualified majority vote.
Note: WCC 21.02.030 (3) sets a ten day time limit on the appeal. also the Council is able to overturn a ruling only “if it is found that the examiner’s decision is based upon an error of law or is clearly erroneous based on the entire record.”
Again, if the Council were to hold itself to the four-votes-no-matter-what standard, and there were barely a quorum present at such a meeting, a single Member of Council would have the power to deny a citizens’ right to appeal by simply voting no or abstaining, even in the event of a clear error on the part of the hearing’s examiner.
The absurdity here is that this would grant a single Member of Council absolute veto power over the County Council’s own decision to overturn a decision that has been found to be clearly erroneous by the majority of the rest of the Council present. This is not just absurd, but it involves the matter of an individual citizen’s basic right to appeal a legally binding decision.
Requesting Review of Construction Standards
WCC 12.08.035 (D) paragraph 2
Majority description: “majority of the council”
Parliamentary meaning: a majority of the members present and voting.
This is a vote to request to be given a review of recommended construction standards that are ordinarily only submitted for review to the County Executive.
If the County Council can achieve a quorum, it should be able to try to request such a review without ever needing to achieve unanimous consent.
Confirmation of Executive Appointments
Charter 3.23 (Example: WCC 2.29.020)
Majority description: “majority of the County Council.”
Parliamentary meaning: a majority of the members present and voting.
Again, if the Council were to hold itself to the four-votes-no-matter-what standard, and there were barely a quorum present at such a meeting, a single member of Council would have the power to delay the Executive’s ability to make necessary appointments, even if three members of Council are willing to vote to confirm.
The absurdity here is that this would grant a single member of council absolute veto power over the County Executive’s appointment decision. A decision that has a statutory time limit built into it.
Appointment (and Removal) of Non-Council Members to Boards, Commissions, and Committees.
(Appointment) WCC 2.03.060
Majority description: “majority roll call vote of the council.”
Parliamentary meaning: a majority of the members present and voting. The vote must be recorded as a roll call vote.
Again, if the Council were to hold itself to the four-votes-no-matter-what standard, and there were a quorum present at such a meeting, a single member of Council would have the power to block the Council’s ability to make necessary appointments, even if three of the members present are willing to vote to make an appointment.
The absurdity here is that this would grant a single member of council absolute veto power over the County Council’s appointment decision. A decision that has a statutory time limit built into it.
(removal) WCC 2.02.095 (B)
Majority description: “majority vote”
Parliamentary meaning: a majority of the members present and voting.
Note: according to WCC 2.03.025 “the council shall make such removal only upon the proper grounds specified in law. In the absence of such guidance in law, the council shall not remove a member from office without having given the member an opportunity to be heard by the council, if so requested.”
A quorum should be able to try to remove an appointed member of a board, committee or commission, when there are proper legal grounds to do so, without being required to achieve unanimous consent.
The absurdity here is that this would grant a single member of council absolute veto power over the County Council’s own decision even if there are proper legal grounds for making that decision.
Filling Vacancies In Elected Office
Charter 4.50
Majority description: “majority of the Council”
Parliamentary meaning: majority of members present and voting.
Note: the Charter itself describes an entirely different standard for the County Council on the matter of filling vacancies in elected office than for other council action. It is also worth noting that this definition appears outside of the section describing the legislative branch.
WCC 2.02.030 (filling Council vacancies)
Majority description: “majority vote of the County Council.”
Parliamentary meaning: a majority of the members present and voting.
Now, this time I want you to imagine that there is a vacancy, but it is the County Executive’s seat that is vacant.
Okay... the County Council meets... and again, the Council is just barely able to meet a quorum.
Imagine further that due to a set of unusual circumstances beyond anyone’s control, no more than four Members of Council are going to be able to meet during the 30 days after the County Executive position becomes vacant. There are no vacancies on the Council, but there are three Members of Council who will be prevented from attending any meetings for at least 30 days:
- One member is recovering from a serious medical condition, and must remain hospitalized for at least a month.
- One member is called to active military duty and will remain on active duty for at least a month.
- One member is on jury duty and the jury has been sequestered on the judge’s orders. The trial promises to take at least a month.
If all four of the members who can attend can’t agree on whom to appoint to the County Executive’s office in 30 days... then what?
The Council throws the decision to the County Executive?
No.
But not for the reason you might think.
The only circumstance that the County Council may “punt” a vacancy appointment to the Executive is when there is a vacancy on the Council itself. All other vacancies in elected county offices that need to be filled by appointment until the next November election are to be filled by the Council and no one else.
So, how long does the County go without a Sheriff, Auditor, County Prosecutor... or County Executive for that matter?
30 days. According to the charter. (Section 4.50)
If the County Council can achieve a quorum when it is time to fill a vacancy in the County Executive seat, it is absurd to allow a single member of Council to have the power to prolong the impairment of the executive branch of government for any length of time by voting no or abstaining. Particularly if the other three members are able to agree on an appointment candidate for the vacant office.
As extreme as this example is, it illustrates that the four votes standard is not only inappropriate and absurd... it actually has the potential to violate municipal law.
The Four Vote Standard and Vacancies
The definition of “a majority of the entire membership” specifically excludes membership vacancies. If there were two vacancies on County Council, then the entire membership becomes five. And a majority of the entire membership would be three, in that case.
There is a widely published form of a qualified majority that would support the four-votes-no-matter-what standard.
“A majority of the fixed membership.”
The qualifier “fixed” is distinct from the qualifier “entire”. This distinction is made particularly clearly in the most famous and widely used published parliamentary authority, Robert’s Rules of Order.
Seven Circumstances, One Similarity
There is one characteristic that all seven of these circumstances share:
None of them involve passing an ordinance.
No ordinance Involved
Not a one of these circumstances involves the Council passing an ordinance.
This means, by definition, they are not legislative acts. (Section 2.30 of the Charter)
The County Council might be the legislative branch, but everything the Council does is not a legislative act.
The Council doesn’t need to pass an ordinance to take a ten-minute recess, or to adjourn a meeting early, or to select a presiding officer. These actions can’t even be mistaken for legislative acts. (Hint: if kids running a 4-H club meeting can do it, it isn’t a legislative act.)
Not even initiating a comprehensive plan amendment is done by ordinance. It is done by resolution. Passing a resolution is not a legislative act, not even when the County Council does it. Resolutions don’t have the force of law. The procedural rules that apply to ordinances don’t apply to resolutions. (Note: When adopting an amendment to the comprehensive plan, the Council does so by ordinance, so that action is clearly a legislative act. The four-vote-standard clearly applies there.)
Considering an appeal of a hearing examiner’s decision may or may not be a quasi-judicial proceeding, but whatever it is, it is not a legislative act. No ordinance.
Requesting review of construction standards... not a legislative act. No ordinance.
Confirming appointments of the Executive... not legislative acts. No ordinance.
Appointments to boards, committees, and commissions... not legislative acts. No ordinance. Same goes with removing members appointed to such bodies. No ordinance there either.
Even an act as substantial as filling a vacancy in elected offices does not involve passing an ordinance. It doesn’t even involve passing a resolution. It’s not a legislative act.
The so-called four-vote-standard is appropriate for all action taken that involves passing an ordinance. That would be all legislative actions. All exceptions to this four-vote standard that I was able to find in the WCC relating to council action involve a conspicuous lack of an ordinance.
That hardly seems like a coincidence.
Cracking the Parliamentary Procedure “Da Vinci Code”
The language in the 2.22 of the Charter uses the magic word “shall”.
In legal parlance, that means “you have to”...
So at first blush, it would seem that even if my logic here is sound, there is the matter of the language of the law. “Council action shall require at least a majority of the entire Council”. [emphasis added]
Law says you gotta have four votes. Right there in the Charter. Section 2.22.
But parliamentary procedure has been developed over hundreds of years, and there is very little new under the sun in this regard. And parliamentary procedure is a component of common law.
And common parliamentary law has a built-in way of handling these conflicts that are assumed to appear in statutes and charters of the multitude of organizations that employ them.
First, Robert’s Rules...
The County Council doesn’t list Robert’s Rules as its official parliamentary authority, but it is acceptable to quote another parliamentary authority if it proves persuasive.
Way near the back of Robert’s Rules of Order, Newly Revised... in the section on Bylaws, on page 571 in a subsection titled Principles of Interpretation, is Principle #3:
A general statement or rule is always of less authority than a specific statement or rule and yields to it.
Now, Sturgis...
Sturgis is the official parliamentary authority for the Whatcom County Council. So it is goes beyond persuasive. It is authoritative.
It is a component of the Whatcom County Code. It is statutory law.
And Sturgis handles the matter more forcefully.
In regards to rules of order, a rule of order that appears in a statute outranks a rule of order that appears in a charter, in the event of an apparent conflict between two such rules.
Statutes are specific. Charters are general. And in terms of parliamentary rules of order, according to Sturgis, the specific outranks the general. That way you may have a general rule about needing at least four votes for almost all actions in the charter, and then describe the handful of exceptions as they are necessary, in the statutes when those exceptions apply.
This is a legitimate legally supported explanation for why the County Council doesn’t have to re-write the Charter to allow fewer than four votes for such council actions as taking a ten minute recess or adjourning a meeting early.
According to the Whatcom County Council’s own official and statutorily codified parliamentary authority, when there is apparent conflict between a rule of order in a charter (like 2.22) and a rule of order in the WCC (statutory law)... it is the rule of order in the WCC that has rank, and the rule in the charter yields to it under that specific circumstance.
And since the rule of order in the statute only comes into play when the statute itself comes into play... it works flawlessly.
When it is time to take a ten minute recess for example... the charter says you normally need a majority of the entire council for any council action. But WCC 2.20.040 (e) says that the meeting will run in accordance with Sturgis, which requires only an unqualified majority vote to sustain a motion to recess a meeting. The specific rule of order on the votes needed to take a recess (as described in Sturgis) outranks the general for rule of order requiring a majority of the entire council to take action... in the specific event of the council voting on taking a recess.
This has already been provided for in Sturgis itself. There is no need to rewrite the whole charter or the WCC to fix what was never broken in the first place.
When a statute comes into play that calls for a different type of majority than the Charter calls for, you use the majority described in that statute.
In the case of parliamentary basics like taking a recess or adjourning a meeting, those majorities are not, nor should they ever be, a majority of the entire council.
Recommendations
Retain and clarify existing unqualified majority votes in 2.02.
Don’t replace the existing statutory references to unqualified majorities and replace them with references to “majority of the entire council”. Take all existing descriptions of majority votes that appear in 2.02 and render them into the unambiguous form similar to “by the county council with a majority vote”.
(example) 2.02.030 (a)
An appointment to fill a vacancy on the council shall be approved by the county council with a majority vote.
Clarify the definition of a quorum.
Removing ambiguity is more important than preserving readability.
(example)2.02.040 (f)
A majority(four)of the fixed number of council members, pursuant to WCC 2.02.005, shall be in attendance to constitute a quorum.andA quorum shall be necessary for the transaction of the council’s business, provided that there are enough members serving on the council to achieve a quorum. If by virtue of vacancies, the council is unable to achieve a quorum, the council shall transact that business necessary to fill all vacancies, pursuant to WCC 2.02.030 (b), before transacting any other council business.
Remove redundancies.
If the Council insists on removing the unqualified majority votes from WCC 2.02, then it would be simpler just to remove all references to majority votes in WCC 2.02, since they are needlessly redundant. Section 2.22 of the Charter already sets a default standard for council action as “a majority of the entire council”, there is no point in simply repeating that standard in a few scattered statutes in the WCC.
While the desire to describe a council with vacancies in terms of “the majority of the entire remaining council”, is understandable... this is a distinction without a difference, since the parliamentary definition of “the majority of the entire council” already accounts for vacancies. This may improve ‘readability’ but it actually creates unnecessary ambiguity and should be avoided.
Descriptions of “affirmative” majority votes are also distinctions without a difference.
In reference to changes to 2.02.060... DANGER!!!
Removing limits on debate (striking part E) and making it harder to end debate (changing the definition of what is currently part H) are a dangerous combination. And the danger is not immediately obvious on a quick read.
The language changes proposed to 2.02.060 that are of such great concern to me in AB2010-143a are:
E. No member of the council shall speak a second time to the same question as long as any member who desires to speak has not spoken to that question.
H. (becomes part G) To bring a question to immediate vote, a councilmember may move to close debate. If more than one motion is pending, the motion to close debate should specify the pending motions to which it applies (main motion, motion to amend, etc.). The motion to close debate cannot interrupt a speaker, is not debatable, andrequires a two-thirds affirmative vote of the councilrequires an affirmative roll-call vote by two-thirds of the entire council. The motion to close debate should be used in moderation, as members cannot be expected to maintain interest in an organization if they are frequently denied the right to participate in its deliberations.
If the new language proposed for 2.02.060 were codified into law, the majority that would be required to end debate would always be five, assuming no vacancies.
That’s fine if seven members are present.
But if two people are absent from a meeting... then there are five members present and the number of votes needed to end debate is still five.
In that instance, one member would have the power to prevent the rest of the council from ending debate.
One person could legally run the clock until the end of the meeting and stop all business from being transacted.
That’s a filibuster.
In fact, The U.S. Senate doesn’t have filibuster power like this. It only takes 60% of the entire Senate to end debate on a question. Even they don’t require two-thirds of their entire membership to end debate.
In the case of one person being absent... two members of council could achieve a filibuster effect by voting against ending debate. Under this scenario, even two thirds of the county council members present couldn’t end debate.
An unqualified two-thirds vote is the universal parliamentary standard for ending debate. That standard has proven over centuries to be high enough for every one except the U.S. Senate. There is a reason for that.
It should never be impossible for a quorum of the County Council to end debate on a question.
It is difficult to overstate how problematic the proposed changes to WCC 2.02.060 will prove to be.
Conclusion
Having just read AB2010-143a, I believe the County Council may be opening a Pandora’s Box instead of closing one.
To actually strike out all of the unqualified majority votes in 2.02 and turn them into forms of “majorities of the entire council”, the Council will be unnecessarily increasing the risk that future councils may find itself paralyzed into inaction if they ever find themselves in one of these awkward scenarios I’ve described above... (meetings where the Council is barely able to achieve a quorum, but is under a statutory mandate to make a decision... often under a statutory time limit.)
The Council needs to be able to take actions as described in 2.02 and be able to do so with an unqualified majority vote. That language was placed in those statutes for very good reasons. Those decisions have to be made, even if only four members of Council are able to attend meetings, and there are time limits on those decisions that will simply not allow for the Council to wait until there are enough members present to reasonably achieve a four-vote-standard.
It is entirely appropriate for a meeting with only four council members in attendance to have great difficulty in taking legislative action. These actions can be postponed, referred to committee, and otherwise delayed until there are seven members present at a meeting.
However, there are very specific non-legislative actions that are the County Council’s responsibility, and those actions are such that it is inappropriate to apply the four-vote-standard to those actions. Particularly in the case of meetings where the Council is just barely able to achieve a quorum.
There are actions that are far too basic for the four-vote standard, such as motions to take recesses and adjourn meetings.
There are substantial and consequential actions that the Council has a statutory obligation to make within strict time limits which are not legislative acts, and a practical inability to achieve four votes does not excuse the Council from such statutory obligations. Continuity of government is merely one of these black letter obligations.
Some actions the Council needs to take simply can’t wait for four votes. Actions that can’t be referred to committee or postponed. They need to be taken by the Council, even if there are only four members, with a majority vote that might not add up to the magic number four.
The changes I refer to in AB2010-143a may not achieve their aim of make things simpler for future councils, in fact these actually have the potential to make things impossible for those future councils.
I urge all due caution in making these changes.
Sincerely,
Shane Roth
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