|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: July 23, 2002
You have the following question: Is it within the authority of the board of mayor and aldermen, over the objections of the mayor, to delete from the recorder’s minutes certain language that reflects the mayor’s opinion on a certain board action, before the board adopts the minutes?
The answer is yes.
You have already done an excellent job on outlining for the city the function of minutes of meetings. That outline reflects what Robert’s Rules of Order Newly Revised, 10th ed. (RRONR) and various letters MTAS attorneys have written on the same subject. In § 1-103 of its municipal code, the city adopted Robert’s Rules of Order, Revised (RROR) to govern the conduct of its meetings in all cases where its application is applicable and does not conflict with the charter or its municipal code. As far as I can tell, RRONR and RROR do not differ in their provisions governing minutes.
In a nutshell, under RRONR, minutes that are not published are supposed to reflect what happened during the meeting, not what any particular public official said. RRONR, § 48, by itself makes that clear. In that respect, minutes are unlike the Congressional Record and the records of many state legislatures, which are actually journals that reflects everything congressmen and state legislators say, and even documents they enter into the record both during and after sessions.
The minutes of the board’s meeting on June 13, 2002, reflect an extremely diligent attempt on the part of the recorder to put in the minutes everything said by each board member. That is not uncommon with respect to minutes of local government bodies in Tennessee, but such an attempt is wholly unnecessary. Part of the problem of taking minutes is that it is almost an art; it isn’t as easy as it looks or sounds to produce minutes that conform to the model in RRORNR.
The language of the mayor and the context in which it occurred follows: the Mayor passed out a letter that he had written to a gentleman, who MTAS records reflect is the alderman over the department responsible for the water system. The mayor’s letter apparently took issue with the Alderman for having waived the $25 water service reconnection fee with respect to one of the city’s water customers. There followed (or occurred at the same time) a dispute over the authority of the individual aldermen over their departments and of the board relative to the mayor. The Mayor recommended to the board that a letter be sent to the customer whose water service reconnection fee had been waived, presumably to demand payment of the fee. An alderman made a motion to that effect, but the motion received no second. At that point the mayor declared, “Congratulations, you have just invited corruption to the board.”
It is that language the board directed the recorder to excise from the minutes. I know of no legal reason the board cannot order the recorder to excise the language. As I understand the facts, the board voted 4-1 in its July 11, 2002 meeting to delete that language. Under § 7 of the City Charter, the recorder is nominated by the mayor but appointed by the board, and serves at the pleasure of the board. The mayor has very limited control over the recorder, and there only with respect to the recorder’s service as treasurer under § 9 of the city charter. There it is provided that, “The recorder shall pay out corporate funds on the warrant or order of the mayor only.”
Indeed, under the City Charter, the mayor is what is called a “weak” mayor. Indeed, he has as little power as I have seen under a municipal charter in Tennessee. These are his powers under the charter (which includes its amendment by Private Acts 2002, Chapter 134):
§ 5: “The finance department shall be under the supervision of the mayor.” Under the same section, he is in charge of that department “in accordance with such policies as the Board shall prescribe....” In addition, under the same section, the mayor appoints the aldermen to be in charge of each department.
§ 7: Nominate the recorder, and in emergencies make temporary appointments of police officers.
§ 9: Issue warrants for the payment of funds out of the city treasury.
§ 11: Serve as city judge in the absence of the recorder.
§ 13: Sign city contracts [recorder also].
§ 14: Sign conveyances of city property [recorder also].
§ 17: Take bonds of arrested persons, in the absence of the recorder.
The reason I have listed the powers of the mayor is that obviously those powers have implications for what the mayor cannot do as well as what he can do. In Tennessee the mayor
has only those legislative and executive powers granted to him in the charter. [Seil Roth & Co. v. Mayor and Aldermen of Newbern, 126 Tenn. 223, 148 S.W. 680 (1912); Reeder v. Trotter, 142 Tenn. 37, 215 S.W. 400 (1919). Also see Anderson v. Town of Gainesboro, 17 TAM 12-27 (1992).]
The City Charter outlines the mayor’s powers, and gives him only a few limited legislative and executive powers. With respect to the former, he is not even denominated the presiding officer, and to the extent he functions in that capacity it is with the permission of the board of mayor and aldermen. With respect to the latter, under § 5 of the city charter, he has the power of supervision over the finance department, but even then, under the same provision of the city charter, his authority is limited (as is all the aldermen functioning as heads of departments) to the extent “that his department is operated in accordance with such policies as the Board shall prescribe....” Neither the limited legislative or executive powers the mayor has permits him to direct the recorder to keep in the minutes material the board has directed be removed.
The recorder derives her power to take minutes under § 10 of the city charter, which provides, “That the Recorder shall keep an accurate account and record of all proceedings of the Board of Mayor and Aldermen and shall perform such other duties as the Board may impose on him....” Nothing in that provision gives the mayor any power whatever to prescribe what shall be, or what shall not be, contained in the minutes. The recorder is responsible to the collective board for that part (and most other parts) of her job.
Under §1-201 of the Municipal Code, the board of mayor and aldermen has delegated to the mayor the power of “general supervision” of the affairs of the municipality. I have in the past done considerable research on what constitutes the power of “general supervision.” That power is limited to general oversight of the operations of the city, but within the limitations prescribed by law and by the policies of the governing body of government in question. The power of general supervision includes the power to bring problems to the attention of the governing body of the government in question and to make recommendations with respect to those problems, but it does It does not include the power to instruct officers and employees where their duties are prescribed by law, or the power to override the governing body’s polices or decisions, even if those policies or decisions are unwise. [Great Northern Ry. Co. v. Snohomish County, 93 P. 924 (Wash. 1908); State ex rel. Miller v. Board of Education of U. Sch. D. No. 398, 511 P.2d 705 (Kan. 1973); Kayfield Construction Corp. v. Morris, 225 N.Y.2d 507 (S.C. App. Div. First Dept. 1962); State v. McCombs, 262 P, 579 (Kan. 1928); Mayor & Council of City of Athens v. Wansley, 78 S.E.2d 478 (Ga. 1953); Alsop v. Pierce, 19 So.2d 799 (Fla. 1944).]
Whether or not the recorder’s minutes are approved as she takes them is entirely up to the board. If the board voted to instruct the recorder to remove certain language from the minutes, the recorder should follow the direction of the board. To the point that the minutes are approved, the minutes are the recorder’s minutes; at the point they are approved, they are the board’s minutes. Both §§ 41 and 43 of RRONR mention the practice of sending the minutes to members of the governing body before the meeting at which they are approved. Section 41 notes the pros and cons of doing that, but also indicates the status of the minutes before they are approved:
The practice of sending to all members advance copies of the minutes as drafted by the secretary has both advantages and disadvantages. It is natural for the members to prefer to study the minutes beforehand to be better prepared to offer corrections; and this procedure generally saves time when the minutes come up for approval. On the other hand, the minutes do not become the [Emphasis contained in the text] minutes of the proceedings of the society until they have been approved; and before this happens, the secretary’s draft may be materially modified in the correction process. Members may miss some of the corrections or neglect to mark them on their copies or may not get them right unless the chair repeats them very carefully–with the result that many inaccurate copies of the true minutes as finally approved are likely to remain in existence. Only the secretary’s corrected copy or a retyping of it is official in such a case.
The board of mayor and aldermen has the power to correct the minutes; there can be no other answer to that question because upon their approval, the minutes become the board’s minutes. Indeed, under RRONR, § 48, “When the minutes are approved, the word Approved with the secretary’s initials and the date, should be written below them.”
You expressed some concern over how many votes it takes to approve the minutes, based on the language in RRONR, § 48, which declares that “Corrections, if any, and approval of the minutes are normally done by unanimous consent.” A similar statement is also found in RRONR, § 41, and RRONR, § 4. RRONR, § 41 deals with the order of business, and the part of that section that deals with the approval of the minutes, reads as follows:
The chair says, “The secretary will read the minutes”....In organizations where copies of the minutes of each previous meeting as prepared by the secretary are sent to the members in advance, the actual reading of them aloud may be waived if no member objects. In either case, the chair then asks, “Are there any corrections to the minutes?” and pauses. Corrections when proposed, are usually handled by unanimous consent. (pp. 51-53) It is generally smoother to do the approval of minutes also by unanimous consent, although a formal motion to approve them is not out of order.
The reference in that quote to pp 51-53 is in RRONR, § 4, which deals with motions. The part of § 4 that covers the adoption of motions by unanimous consent says this:
In cases where there seems to be no opposition in routine business or on questions of little importance, time can often be saved by the procedure of unanimous consent, or as it is also called general consent. Action in this manner is in accord with the principle that rules are designed for the protection of the minority and generally need not be strictly followed when there is no minority to protect. Under these conditions, the method of unanimous consent can be used either to adopt a motion without the step of stating the question and putting the motion to a formal vote, or it can be used to take action without even the formality of a motion. To obtain unanimous consent in either case, the chair states that “If there is no objection... [or, “without objection...”], “ the action that he mentions will be taken, or he may ask, “Is there any objection to....” He then pauses, and if no member calls out, “I object,” the chair announces that, “Since there is no objection...” the action is decided upon. If any member objects, the chair must state the question on the motion, allow any desired, allow any desired debate (unless it is an “undebatable] parliamentary motion–see 6, and tinted pp. 44-45], and put the question in the regular manner. Or–if no motion has been made–the chair must first ask, “Is there a motion to...[stating the proposed action]”; or he must at least put the question, assuming such a motion....
It is very clear from a reading of RRONR, §§ 41, 48, and 4, that the use of unanimous consent is merely a tool designed to speed up the legislative process on usually non-controversial issues; hence, it is generally used with minutes. But those sections are equally clear that where an objection is made to the wording or content of the minutes, unanimous consent gives way to a motion to amend the minutes, and any debate and vote that follows. .
Such a motion is handled like any other motion, and the question of how many votes are required to pass motions is resolved by the city’s charter or general law, or in the absence of any such provision in the charter or general law, by the common law. There is no provision in the City Charter for how many votes are required to pass measures, and no provision in the general governing the adoption of minutes. Under the common law, a majority of those present and voting (assuming the presence of a quorum) are required to pass measures. [Collins v. Janey, 247 S.W. 801 (1923); State v. Torrence, 310 S.W.2d 425 (Tenn. 1958).] Given that the city’s governing body consists of a mayor and five aldermen, and given that the vote for the passage of an amendment to strike the mayor’s language from the minutes was 4-1, it can undoubtedly be said that there was a quorum, and that a majority of those present and voting voted in favor of the measure.
That concludes my legal opinion on this matter. Now I would like to make an observation, then give the board some advice. My observation is that I am at a loss to understand the depth of the board’s concern that the mayor’s remarks be removed from the minutes, particularly where almost everything anyone said is apparently included in the June 13, 2002 minutes, and particularly where it has apparently been the practice of the board to approve minutes that reflect content far beyond that contained in the model minutes in RRONR, § 48. Although it is within the authority of the board to pick and choose among the remarks of its members and other persons appearing before it that are to appear in its approved minutes, such picking and choosing is bound to lead to more of the kind of dissension seen in this case. In addition, a practice of the recorder and/or the board to take and approve minutes that include an exquisitely detailed account of what was said as well as what was done, imposes an impossible burden on the recorder to decide what remarks go on and what remarks stay out of the minutes.
My recommendation is that the city use the form of minutes prescribed in RRONR, § 48. If the city wishes to record the comments of board members on issues, let it do so in tape recordings of the meetings. It may already do that. Whatever the case there, such recordings would be available to both board members and the public under Tennessee’s Open Records Law, and the recorder could make her minutes with the aid of those recordings. But if the board’s minutes reflect what was done and not the personal comments of the board members, their approval should not generally become an issue that blocks the progress of the board’s meetings.