|Legal Opinion: |
Text of Document: November 18, 1996
You have the following question: How does the city council make the mayor follow the agenda and otherwise conduct meetings as prescribed by Roberts Rules of Order? You sent to me a newspaper clipping covering the November 8, 1996, meeting of the board, which indicates the meeting degenerated into chaos and collapsed.
The city by ordinance has adopted Robert’s Rules of Order and has prescribed an agenda for the conduct of business. [See sections 1-102 and l-103 of your city's Municipal Code.]
Many small cities informally conduct council meetings with little intervention from the presiding officer and with barely a nod to Robert’s Rules of Order or any other procedures the city may have adopted, yet business runs smoothly. However, if there is conflict between the presiding officer and the city council, and/or the city council meetings are characterized by problems similar to those reflected in the newspaper clipping, relatively strict adherence to at least some basic procedures are essential to the conduct of city business.
I have previously written the city a letter that outlines the powers and duties of the mayor. As that letter indicates, he is a weak mayor. However, under Article VIII of theMunicipal Charter, one of the mayor’s duties is “to preside at all the meetings of the Board of Mayor and Aldermen.” However, nothing in that provision permits him to adopt his own rules of procedure or to have none at all; he has no right to suspend or ignore sections 1-102 and 103 of the Municipal Code, or any other rules of procedure adopted by the board for the conduct of its business.
In Rudd v. Arallo, 249 N.W.2d 323 (Ill. 1969), a mayor by statute functioned as the presiding officer of the city council. However, the city had adopted Robert’s Rules of Order and other rules to govern its procedure. The mayor refused to permit the reading or consideration of an ordinance. A motion was made to appeal his decision and all of the aldermen present voted in favor of the motion. The mayor still refused to recognize the motion, but upon a roll call vote, the four aldermen voted to adopt the ordinance. The mayor did not sign or veto the ordinance (He had those powers), but asked for an injunction against its enforcement.
The Court held the ordinance passed and enforceable, and rejected “[t]he mayors position in this case...that he has the sole power to determine whether or not an ordinance or motion is valid.” The Court reasoned that:
Even if the mayor does not believe that a particular motion or ordinance is valid, it can still be considered by the city council. His remedy is not to refuse the right to consider, but, rather, to veto the ordinance....He is bound by the ordinances of the city and among those ordinances are the rules of procedure of the city council. To that extent he is in no different position than everyone else. All are bound, including the mayor. [At 325-26.]
Under Robert’s Rules of Order Newly Revised (RRONR), section 40, “The chair himself cannot depart from the prescribed order of business, which only the assembly can do by at least a two-thirds vote.”
The duties of the presiding officer are prescribed by RRONR, section 46. One of the admonitions of that section is that, “While providing strong leadership, he should be fair. He should never get excited; never be unjust to even the most troublesome member...” If there is to be any order in public meetings it is incumbent upon the presiding officer, whatever his own personal agenda, to be scrupulously neutral and impartial in the conduct of meetings.
If the mayor refuses to follow the agenda, or otherwise breaches the procedures prescribed by RRONR, one of the members of the board should raise a Point of Order. RRONR, section 23 says the following about points of order:
It is the right of every member who notices a breach of the rules to insist on their enforcement. If the chair notices a breach, he corrects the matter immediately; but if he fails to do so--through oversight or otherwise--any member can make the appropriate point of order. In any event, when the presiding officer has made a ruling, any two members can appeal (one making the appeal and the other seconding it.) As prescribed in section 24.
If the presiding officer refuses to put a board member’s motion before the board, RRONR, section 60 says that:
If the chair at a meeting ignores a motion made and seconded in good faith, and neither states the question on the motion nor rules it out of order, the maker of the motion should raise a Point of Order (23) covering the case, and from the chair’s decision he can Appeal (24). If the chair also ignores the point of order, the member can repeat the motion; and if it is seconded and the chair still ignores it, the maker of the motion can himself put it to a vote standing in his place.
Rudd also stands for the proposition that the presiding officer must recognize a member of the governing body, and if he or she refuses to do so, the council can take matters into its own hands. The presiding officer has no authority to stop the affairs of the city from going forward in his capacity as presiding officer. Rudd is supported by Hicks v. Long Branch Commission, 55 A. 250 (N.J. App. 1903), Attorney General v. Remick, 58 A. 871 (N.H. 1904), Kaeble v. Mayor of Chicopee, 41 N.E.2d 49 (S. Jud. Ct. Mass. 1942).
Censure is also available to the board where the presiding officer refuses to obey the rules of procedure. RRONR, section 60 provides that:
If the regular presiding officer of an organized society culpably fails to perform the duties of the chair properly in a meeting, a motion can be made to censure him, which can be put to a vote by the maker of the motion as just explained.
A tool of last resort where the presiding officer acts in a manner to bring city business to a standstill is to treat him as absent. In Keith v. City of Covington, 600 S.W. 709 (Ky. App. 1901), a member of the board of councilmen made a motion to extend the council meeting. The legal president of the council, McLean, refused to entertain the motion, ruled it out of order, and vacated his seat. Thereafter, one of the members of the council, seconded by another member, made a motion to elect Sayer president pro tempore of the council. The motion was adopted by the requisite majority, and a certain ordinance was passed by the council. The ordinance was challenged on the ground that it had been invalidly passed because the council had illegally replaced the presiding officer.
The Court held that:
When McLean, the regular president, vacated the chair, and refused to preside over the meeting, put the necessary motions, and to discharge the duties imposed upon him by his position, he was absent within the meaning of the statute, though not absent in fact. [At 710]
It is not clear whether a presiding officer who is attempting to obstruct the business of the city actually move from his seat before he can be considered absent for the purposes of replacing him with another presiding officer. Arguably, if he refuses to preside over the meeting, or presides over it in such a way that he brings city business to a standstill, he has failed to discharge his duties and is “absent,” at least for the purposes of his duties as presiding officer. In my opinion, where the facts are clear that the presiding officer refuses to perform his duties and is clearly and successfully intent on obstructing the business of the board, the courts would have no problem treating him absent even if he physically remains in his chair.
It does seem clear that he need not leave the room to be absent. Keith cites a Canadian case to support that proposition. There a statute provided that, “where a prosecution for a certain offense is brought before two justices, no other justices shall sit unless one or both of the original justices is absent." What did it mean to be absent, asked the Canadian Court?
I think the word ‘absence’ in this section does not necessarily mean actual absence from the place or room where the trial is held, but would apply to a case where the justices had for some cause become unable to sit or take part in the proceedings. [At 710.]
Article VIII of the City Charter permits the board to “elect one of their number to preside in the absence of the Mayor.” However, the board should sparingly exercise that remedy unless the mayor has actually left his chair. In fact, that remedy should be exercised only under the most egregious circumstances. Generally, absent such circumstances, the members of the board can circumvent an obstructionist presiding officer using the rules of procedure under RRONR, particularly where the introduction and consideration of ordinances, resolutions and motions are concerned. What is required on the part of the board is determination visible to the presiding officer and to the public that the board will circumvent the presiding officer in the face of his obstruction. But conduct of the presiding officer affects the fundamental process of the meeting and stops business dead in the water, such as in a case similar to that which occurred on November 8, 1996, might constitute egregious circumstances.
An important key to the above cases is that the courts were concerned with whether the ordinance or motion in question passed notwithstanding obstruction by the presiding officer. For example, in Keith, the Court declared that:
The essential point in the passage of an ordinance by the board of councilmen is that it should be fairly submitted to the members of the council, and shall receive the number of votes required by law to pass it. As the records of the proceedings of the board of councilmen show that three-fourths of the members voted that Sayer should act as president pro tempore after the regular president had vacated his seat and refused to perform the duties of his officer, and that two-thirds of the entire body of councilmen voted for the passage of the ordinance....we are of the opinion that all of the steps required by law to give validity to the ordinance in question have been complied with, and that the ordinance and contract made pursuant thereto are binding.... [At 710.]
The motions and the ordinance received the proper vote. That was good enough, reasoned the Court. In other words, the courts will determine whether the measure in question was put before the board, and whether the measure received the proper vote. If those two conditions are met, the measure will have passed regardless of whether the presiding officer was at the helm of the meetings.
I do not know enough of the details of the November 8, 1996, meeting to outline a course for the board to have taken to keep the meeting from collapsing as it apparently did. However, apparently this much about the meeting is clear: The presiding officer permitted citizens complaints from the floor even before the previous minutes of the board were read. At some point an alderwoman objected to the complaints on the part of a citizen on the grounds that it was not appropriate for the citizen to make the complaints. Ultimately, there was a verbal confrontation between the alderwoman and the citizen, which degenerated to the point that the latter invited the former outside to settle the argument. In addition, somewhere in all that, the mayor attempted to have the chief of police arrest the alderwoman for “badgering” the citizen.
Needless to say, it was the duty to the presiding officer to have both followed the agenda, and to have maintained order in the meeting. It is sometimes difficult enough for even a strong, fair-minded presiding officer to keep a meeting on proper course and free from obnoxious exchanges between board members and the audience; it is a sure recipe for disaster for the presiding officer to abdicate his duties, to pick and choose his own agenda, and to let the meeting degenerate to the point that a member of the audience invites a city councilperson outside to settle an argument.
The alderwoman's s position generally gives her the right to raise the issue of who has the right to complain in meetings of the board. Perhaps she raised the issue unartfully or did not follow the rules of procedure when doing so; whatever the case there, it seems ludicrous for the presiding officer to issue the order to arrest a councilperson for “badgering” a complainant when he himself bears a major responsibility for the chaos that enveloped the meeting. Had he not wanted to follow the agenda for some good reason, he should have asked for a suspension of the rules to permit complaints to be heard first. However, I strongly discourage a suspension of the rules unless there is an overwhelming reason for that action.
If the mayor fails or refuses to follow the agenda in the future, that problem can be handled as follows:
- A board member stands and without waiting to be recognized raises the following point of order: “Mr. mayor, I make the point of order that the mayor is permitting complaints from the floor before the minutes have been read in violation of the agenda established in section 1-102 of the Municipal Code.” Another member seconds the motion. Upon the second, the presiding officer issues a ruling that “The point of order is well taken,” or that, “The point of order is not well taken.” If the point of order is ruled well taken, the board returns to the proper agenda unless it votes to suspend the rules.
- If the ruling was that, “The point of order is not well taken,” the board member can appeal the ruling as prescribed by RRONR, section 24. Basically, that rule provides that the member immediately stands and without waiting to be recognized says, “I appeal from the decision of the chair.” Another member seconds the motion. Upon a second, the presiding officer is required to the question to the board: “Shall the decision of the chair stand as a judgment of the board?” A vote is then taken. If the vote supports the member's appeal, the board immediately returns to the proper agenda.
During this process, the presiding officer should stop any person, from speaking from the floor.
NOT SO IDEALLY
If the presiding officer simply wants to obstruct the business of the board in general, or the board member making the point of order in particular, he can ignore the member, or rule his attempt to make a point of order itself out of order. Alternatively, he can simply do nothing, even to the extent of not stopping speaking from the floor while the point of order and/or appeal is being considered.
- The member himself can put the point of order before the board. Another member seconds the motion. The board votes on the question. In theory, in the face of a favorable vote, the presiding officer must return to the agenda.
-In the event the presiding officer refuses to return to the agenda, the board and the presiding officer are at the crossroads. If the meeting is not to stop dead in the water, the presiding officer must perform his duties, particularly if chaos has developed or is a likely prospect. Here the board can seriously consider treating the mayor as absent with respect to his function as a presiding officer, appoint a presiding officer pro tempore, and proceeded with its business. Again, this option should be a last resort.
Where the problem is that the presiding officer obstructs the introduction and consideration of motions, resolutions and ordinances rather than the fundamental process of the meeting, the board can simply circumvent him in a similar fashion, except that generally it should not be necessary for it to appoint a presiding officer pro tempore.
In the event the presiding officer attempts to adjourn a meeting without the permission of the board, the board can clearly appoint a presiding officer, continue the meeting, and conduct city business, assuming the presence of a quorum. [See 3 McQuillen, Municipal Corporations, section 13.38.]
I am not able here to outline every rule of procedure prescribed by RRONR. I have hit a few high points here, hopefully to get the city through rocky meetings. It would be beneficial for the city to buy a copy of RRONR and for the board members to become at least generally versed on the main methods by which to move city business along when problems arise.
Sidney D. Hemsley
Senior Law Consultant