Guest opinion: Focus on the positive and move forward
Let me begin by stating that it is not my intention to disturb the result of the mayoral appointment made by Council on November 17th. Council did, after all, by a unanimous decision, ratify (perhaps under a misapprehension) that appointment. A challenge to a fait accompli at this date would serve only to create a turmoil that would be detrimental to the City. Nor by so doing am I denigrating the office of Mayor. While it is correct to assert that with our present form of government, the Mayor has scant more authority than a Councilmember, he is the most visible, serves in a myriad of official functions, is the “face” of the City and our ambassador to the rest of the world. Having said that, I feel it is equally important not to fail to recognize how that appointment was made, or more essentially, accept an inaccurate account of what transpired. La verite’ repose dans les faits.
During the November 10th Council meeting, I brought up for discussion a process we had only adumbrated the prior week, so as to assure that issues be resolved prior to the meeting on the 17th, specifically the issue of a majority vs. a plurality appointment. When we addressed that issue, a careful reading of the November 10th verbatim transcript reveals the following: DAY: “What we’ve done in the past is taken a vote and if maybe someone did get the plurality, but it’s almost like an agreement, we come back with our official vote, everybody makes it unanimous, just votes for that particular person as an official vote.” (page 4 lines 16-19) The verbatim then devolves into several pages of discussion concerning conflicts of interest. The issue of plurality vs. majority is next addressed on page 7, line 16; BURCH: “Uuhhmm, the, we also haven’t discussed the be it a plurality or a majority and you know I, I will make that motion to be one vote in a plurality.”, and on page 8, line 6; BURCH: “Motion to make it a plurality.”, BERTOLINI: “Second.” … CITY CLERK POTTER: “Four ayes, three nays. Motion carried.” The process is further elucidated on page 10, beginning with line 16; CITY ATTORNEY MENENDEZ: “I would recommend that, uuhh, for example if it meant that somebody up here gets three, two, and two, and then the person with the three gets it [prescient?], uuhhmm, I would not recommend that, that be the final binding vote. I would recommend that in that instance, the issue of that person’s appointment be submitted to the entire Council for affirmation or ratification because there is a provision in the Charter that says ‘no action of the council except as otherwise provided shall be valid or binding unless adopted by the affirmative vote of four or more members of the Council.’ So in order to avoid any ambiguity I would recommend that whoever is appointed ultimately gets four, at least four votes.” DAY: “you know that’s exactly what I had said earlier when Council Member Deile brought that up, that in the past what we’ve done is that we’ve come back and alright we acknowledge this person is the winner, but we do make a vote and uuhh kind of like an agreement to make it a, a unanimous vote this is the person who we’re going to put in here, uuhh, for, not for the Mayor obviously, we haven’t done this before, but for other positions that we, uuhh, have had in the past.” On page 11 the discourse continues at line 23; DAY: “uuhhh, are we, are we going to do that if we get a plurality vote, go back and get a unanimous vote and bring it back for an official vote. In other words, figure out who that person is, that’s the top of the heap, because I don’t think, we, yea that’s what we’re going to do, cause I don’t think if we try and sit here all night to get somebody to get four votes is going to be extremely difficult.” UNKNOWN: “right, I agree.” DONNELL: “I don’t think so; I think that exactly once we get to that first with the four [departing from the understanding?] we bring it back to get it unanimous to actually appoint to fill the seat, that’s my understanding. Is everybody on board, does that make sense? UNKNOWN: “get to the plurality and then, then” DONNELL: “and then come back with it [returning to the understanding?]. Alright then, thank you very much; I’ll turn it back over to the mayor.”
I believe a fair reading of the November 10th verbatim discloses a consensus to reach a plurality and then move to a unanimous ratification. In fact, the three, two, two scenario that ultimately occurred was specifically discussed by the City Attorney.
If we now turn to the November 17th transcript, page 4, line 23 concerning the previous (November 10th) discussion; BURCH: “I think what, what we should do is just honor the, we had a lengthy debate about this all last week, uuhh, we set up the rules, uuhh, we should honor the rules we have and we, we should move on.” Did we begin to depart from the previously agreed upon procedure on page 7, line 12?; DONNELL: “So as the votes turn themselves out, then we’ll get to the point where we before we appoint we will definitely have a majority. I’ve talked to the City Attorney about this. I don’t know if she wanted to to offer anything before we get here, Madam City Attorney, did you want to offer anything? I could come back to you.” Line 21; CITY ATTORNEY MENENDEZ: “When you get down to actually making a definitive action, i.e. actually appointing someone to be the mayor, then that person should have a vote of at least four members of the City Council.”
The most egregious departure from the accepted procedure comes when the Mayor Pro Tem conducted a second run-off to get a majority. The adopted procedure was returned to when Burch was unanimously ratified.
The City Attorney in a memo dated 19 November, subject as above, recognized that the Council on November 10th voted to accept a plurality of three votes. However, then in a departure from the verbatim the memo states the “Council might wish to move from the plurality to a person receiving at least four votes…” This is not supported by the transcript. The memo further states “Additional discussion was also held on the possibility of the City Council voting, as a show of unity, in favor of an applicant who had already received the four votes necessary for appointment.” Inaccurate. The verbatim demonstrates Council’s desire was to move for the vote of “unity” on the applicant who received a plurality. Council Member Day’s statements are most clear on this. The words “might” and “possibility” are the City Attorney’s characterization; they do not appear to have been uttered by any Council Member.
The City Attorney had on prior occasions, noted that it was unwise to establish a method of arriving at a decision that would place any restriction on the vote of a Councilmember. (November 17 verbatim, page 2, line 9; “I would not recommend a restriction on the ability to vote by any Council Member.” This was stated within the context of not voting for one’s self.) This thinking is also evident in the subject memo “…council members could not be required to cast their votes in the affirmative to support the applicant.” Yet this is exactly what I was forced to do in the run-off between Council Members Burch and Bertolini. I had to cast a vote against my interest by voting for one of my opponents. I was not given the option to vote for myself or to abstain. This was anticipated on November 10th, page 11 line 2; DAY: “If you get down to a situation where you have two candidates and a Council Member just says, you know what I’m not voting for either one of em, uuhh, where are we with that.” The reply is begins on line 13; CITY ATTORNEY MENENDEZ: “Well by law you, an elected official is supposed to vote unless they have either a conflict, which I think we’ve discussed conflicts before.”… (there follows a short monologue on conflicts)…”So really the obligation of each member of Council on this issue is one that you should vote yes or no.”
It is for the above reasons I believe, that while perhaps legally binding, the procedure was infirm. There were other irregularities in the November 17th meeting. For example, a motion to call the question was moved prior to its getting a second and it was carried without the 2/3 majority required by Robert’s Rules of Order. Harmless error? Perhaps, but also unnoticed/uncorrected by all.
The City Attorney’s memo is correct wherein it states that no one raised a point of order (including the parliamentarian) when the agreed procedure was violated. Councilmember Burch was duly sworn in and that action should not be cast aside. To do so would open a Pandora’s Box (actually a jar, pithos in the Greek) of woe that will not serve our City well. My point in summation is merely to accurately illustrate how that decision was reached. In order to preserve the record, I will ask that the verbatim extract transcripts of the November 10th and 17th discussions be appended to the appropriate minutes so that the record is as clear and complete as the documentation permits. No worthwhile purpose is served to do otherwise.
I believe we must focus on the positive and move forward. To quote a Persian proverb, “Life is like a peacock. One can choose to look at its feet or its feathers.”