|Legal Opinion: |
Text of Document: April 19, 2006
Re: Ordinance passed on second reading in violation of rules of procedure
You and your city attorney have asked for an opinion on the validity of an ordinance passed on second and final reading in violation of the rules of procedure adopted by the City Council. You have also asked what should be done to adopt the ordinance validly if this was not done. Although it is always better to follow the standard procedure adopted by the Council, from what you and the city attorney have told me, the ordinance was probably adopted validly on second reading. If the Council is not satisfied that the ordinance was passed validly, however, then the Council should take the vote again using proper procedure.
The Council had for consideration the adoption on second reading of an ordinance levying impact fees. During the confused proceedings, however, there was never a main motion made to adopt the ordinance on second reading. Under Robert's Rules of Order , which the Council has adopted in section 1-103 of your municipal code, the motion to adopt the ordinance on second reading would have been the main motion before the body. Amendments would have been secondary motions. Motions to amend would have been voted on first. Then the main motion, as amended, would be voted on. Adoption of amendments is not adoption of the main motion.
Rather than follow this procedure, the Council failed to make a main motion on the ordinance, but a motion on an amendment was made, and this is what was adopted. It should be pointed out that the amendment was a comprehensive amendment that, as state legislators put it, "became the bill." The amendment was substantially the same as the proposed ordinance but with a few changes that were not substantial enough to start again on first reading. No one objected to this procedure and the Council to all appearances understood what it was voting on and considered the ordinance passed on second reading at that time.
The City Council "may determine the rules of their proceedings." Art. III, ' 12 of the City's Charter. As mentioned above, the Council has done this by adopting Robert's Rules of Order . McQuillin states, however, that:
The council may abolish, suspend, modify or waive its own rules. This also may be done by implication, when action is had not in accordance therewith. McQuillin, Mun. Corp. (3rd edition) ' 13.42.
The case of Bradford v. City of Jellico , 1 Tenn. Ch. App. 700 (1901), which was affirmed by the Tennessee Supreme Court without modification, supports this proposition. In this case, the governing body of Jellico had a rule that required ordinances passed on first reading to be submitted to a committee before any further action was taken. There was a provision for suspending this rule that required unanimous consent of the governing body. Rather than suspending the rule, however, the governing body simply adopted the ordinance on second reading at the same meeting at which it was adopted on first reading, without submitting it to a committee. It should be noted here that all members were in attendance. The court upheld the validity of the ordinance and held that rules of procedure could be waived by implication:
[T]hese rules of order for the government of the city council are mere rules of procedure adopted by itself for its guidance and convenience. They are no part of its legislative or legal charter, and rest upon no positive prescription of the statutes of the state. Being rules of procedure adopted by the council for its own convenience and government in the enactment of ordinances, it is competent for the council to waive them, and certainly this is so with the consent of all council present. This consent is assuredly sufficient, if it is expressly given, and such consent, in our opinion, may be implied. Id. at 719.
The court here held in effect that the rules of procedure adopted by the council are waived if they are not followed and there is no objection. Consent was implied by the silence of the members. In my opinion this is essentially what happened in your city's situation. In the Jellico case, a suspension of the rules required unanimous consent. All members were present and no one objected. Under Robert's Rules of Order only a 2/3 vote is required to suspend the rules. So it is somewhat easier to suspend the rules in your city's case than in the cited Jellico case. A court could infer unanimous consent to suspend the rules in your situation just as in the Jellico case since no one objected to this procedure. Moreover, if an objection had been made, under your city's Charter, only a 2/3 vote of those present would have been required to suspend the rules in my opinion. See Art. III, ' 15 of the Charter.
Admittedly, the Jellico case is an old, obscure case, but it is the only one I could find that is almost directly on point. Apparently the failure of a governing body to follow its own rules of procedure is hardly ever litigated. There are numerous cases dealing with the failure to follow prescribed statutory procedures in adopting ordinances. These cases hold that the failure to follow mandatory procedures mandated by state law render the ordinance void. See, for example, Cherokee Country Club v. City of Knoxville , 152 S.W.3d 466 (Tenn. 2004); Town of Surgoinsville v. Sandidge , 866 S.W.2d 553 (Tenn. 1993); Holdredge v. City of Cleveland, 402 S.W.2d 709 (Tenn. 1966). But these cases involve what the Jellico case calls
"positive prescription of the statutes of the state." They are not controlling here in my opinion.
As indicated above, if the Council is not satisfied that the ordinance was validly passed and wants to make sure, it should take the vote on second and final reading again. I think the procedure to do this is:
1. A council member must make a point of order. The purpose of a point of order is to correct a breach of the rules. An action that is in violation of basic parliamentary principles is a continuing violation and a point of order can be made at any time.
2. The member would rise to a point of order and the Mayor would ask him to state his point. The member would say something to the effect that a proper motion was not made to pass the impact fee ordinance on final reading and that the ordinance should be passed on final reading following proper procedure.
3. The Mayor can either accept or reject the point of order.
4. If the Mayor accepts the point of order and there is no appeal, the vote should be taken again using proper procedure, i.e., with a main motion to adopt the ordinance on final reading, secondary motions on any amendments, and then a vote on the main motion as amended.
5. If the Mayor rejects the point of order and there is no appeal, the previous action stands.
6. The ruling of the Mayor in either case can be appealed. This is done by a motion to appeal the ruling of the Mayor. The motion must be seconded. The question to be decided by the motion is "Shall the decision of the Mayor be sustained?" The decision is by majority vote.
7. If the Mayor accepted the point of order and his ruling is not sustained, then the previous action would stand.
8. If the Mayor rejected the point of order and his ruling is not sustained, then there would need to be a new vote on the ordinance on final reading using proper procedure.
I hope this is helpful. Please contact us if we can be of further assistance.