City Attorney Warren Kraft, in response to an inquiry from Department of Community Development Administrative Assistant Darlene Brandt, has opined that the Plan Commission's 4-1-3 vote to recommend purchase of the Chamber of Commerce building represents a positive recommendation.
Much of Mr. Kraft's analysis turns on the issue of how an abstention should be treated in the final vote tally. He also confirms the the Common Council can act on the matter regardless of the meaning of the Plan Commission vote.
The full text of Kraft's reasoning can be found in the paragraphs below.
Good afternoon, Darlene
You posed several questions arising Tuesday night about a Plan Commission recommendation to the Council concerning the acquisition of the Chamber of Commerce building. For reasons explained below, the 4-1-3 vote is a positive recommendation. Therefore, you would draft the resolution for the scheduled July 24th agenda in this fashion--PLAN COMMISSION RECOMMENDATION: Approved, 4-1-3 abstentions.
You are correct, when you told the Plan Commission member, that the Commission is only advisory when this type of question comes before it. Sec. 62.23(5), Wis. Stats., says certain matters such as property acquisition are referred to the commission "for its consideration and report before final action is taken by the council" The statute further says that the council can take action even if the commission does not make a report within the specified amount of time (30 days). So, regardless of the determination as to what impact the 4-1-3 vote has on the Plan Commission recommendation to the Council, the matter is still referred to the Council for its consideration.
The question turns on what does "present and voting" mean when it comes to abstentions and the reasons for abstaining from the vote. There are situations where, when one is required by law to abstain, the votes "present" are not counted in the tally. And, there are circumstances, when one is not required by law or perceived to be required by law, where some jurisdictions count those votes against affirmative action and others that follow parliamentary rules which hold that abstentions are a nullity or no vote. The answer in Wisconsin depends on the particular situation and before which body the vote is taken. [Please note that this discussion does not apply to the Oshkosh Common Council. There is a specific statute, Sec. 64.07(3), Stats., says, "A majority of the members of the council shall constitute a quorum, and a majority vote of all the members of the council shall be necessary to adopt any ordinance or resolution." The sentence does not use the terms "present" or "present and voting." A "majority vote of all members" means four affirmative votes of the seven Council members without regard to any abstentions or absences, is necessary unless state law requires a super majority.]There is a hierarchy one must follow when determining the necessary number of votes to approve an item. First, one reviews the state law that authorized the creation of the body (if there is one.) Next, one looks to the local ordinance that put the body into place. Thirdly, one studies whatever rules or bylaws which the body created to govern its procedures. Finally, if there is no direction in these sources, one resorts to whatever set of parliamentary procedures have been adopted for the body or Robert's Rules of Order by default. Customarily, we also consult other legal resources, such as the League of Wisconsin Municipalities or the International Municipal Lawyers Association for guidance.
There are two more considerations: if there is a conflict between one voting rule and another similar rule, the rule from the "higher" body of law governs the conflict. And, if a court decision either considers the question head-on or discusses it in dicta (meaning language not necessary for the court's ultimate decision), the result may influence the answer. In this particular situation, a court decision provides this guidance.
In general, there is no set number of affirmative votes in the statute governing the Plan Commission with some exceptions. Example: The adoption of the "Smart Growth" master plan or any part, amendment, or addition, shall be by resolution carried by the affirmative votes of not less than a majority of all the members of the city plan commission. That means, with the nine-member Commission, there needs to be five affirmative votes for adoption regardless of how many commissioners are absent or voting to abstain. (This presumes a quorum of the body is present to conduct business) So, the next step in the analysis is to determine what the local ordinance says.
Sec. 2-36, of the City of Oshkosh Municipal Code, creates the general provisions that apply to all boards, commissions and committees which are officially created, unless another more specific rule expressly applies. Of note, subparagraph (H) reads: A majority of the membership shall constitute a quorum. A lesser number may adjourn. A majority vote of those members present and voting shall be necessary to adopt any motion. (my emphasis.) Sec. 2-52 creates the Plan Commission and details only its membership and its duties; there is no reference to voting requirements, so the general provision of Sec. 2-36 would apply.
You noted that the Commission has adopted its own bylaws to govern its procedures. This is permissive under the last sentence of Sec. 2-36(D). The longstanding bylaws indicate that a majority vote of those members present (without the phrase "and voting") is needed to approve any measure. There are those parliamentarians who argue that there could be situations where members of the body do not vote, such as are absent from the room when the vote is taken, that could reduce the number of affirmative votes needed for passage. However, we do not reach this question because, based on information publicly reported concerning conflicts of interest, the state appeals court decision should apply. For the same reason, resort to general parliamentary principles is also not needed.
I would note, however, that two parliamentary guides contain language that would also support this conclusion, that an abstention is not counted in the voting tally. In the 10th edition of ROBERT's RULES OR ORDER Newly Revised) (c) 2000, one reads: The chair should not call for abstentions in taking a vote, since the number of members who respond to such a call is meaningless. To abstain means not to vote at all, and a member who makes no response if abstentions are called abstains just as much as one who responds to that effect. (see page 394) RONR (10th ed.), p. 43, l. 25-30.
In another guide, paragraph 7.11.2 reads, "An abstention is not a vote." The next paragraph, 126.96.36.199, reads, "When responding to a roll call vote with 'here' or 'present,' a member only indicates his/her presence, which may be useful in establishing the presence of a quorum at the time the vote was taken. The member is not regarded as having voted. NOTE: If the vote requirements for passage is a majority (or some proportion) of the members present, or of the total membership, an abstention has the effect of voting 'no' in that it reduces the pool of possible 'yes' votes." A Guide to Parliamentary Procedures for Local Governments in Wisconsin, p. 59, by Larry E. Larmer, Division of Continuing Studies, UW-Madison, (c) 1999.
Additionally, there are two League of Wisconsin Municipalities opinions which tend to offer conflicting advice, primarily because the more recent one relies on two court decisions cited below. Asked in 1979 for his opinion on the topic, Burt Natkins, Legal Council, League of Wisconsin Municipalities, wrote, "I support the opinions of this office which reasonably concluded that an abstention should not be counted as either an affirmative or a negative vote, but, in essence, should be deemed a nullity." GOVERNING BODIES # 262 (April 29, 1979)
However, last fall, the League offered a revised comment which included the following discourse, referencing both state appellate court and district court decisions:
The lack of clear guidance in this area means that there is room for disagreement and, also, that municipalities have the opportunity to think about these questions and answer them in a way that makes sense for their community. ...
Abstentions: Of all the situations that arise, abstentions seem to present the most difficulty and uncertainty. As explained above, the court in Hall held that it is not enough to merely have a quorum present but, rather, a quorum must actually vote. In Hall, the members voted but the court disqualified their votes because the members would have been required to abstain by law.
It is unclear from Hall whether an abstention would count as a vote for purposes of determining whether a quorum is present. In the past, the League has opined that Hall requires that the ayes and noes add up to a quorum. But as the League opinion acknowledges, this conclusion has the potential to lead to strange results. For example, if three members of a five-member village board are present, a quorum exists. Assuming a majority-of-a-quorum vote requirement, if two members vote yes and one votes no, the proposal is adopted. However, if two vote yes, and the third member abstains, the proposal is not adopted. It seems improper that the third member can defeat the proposal by abstaining, but not by voting no.
However, the opinion points out that an odd result occurs if the contrary rule is used and abstentions are counted in determining whether a quorum is present. For example, such a rule would mean that a five-member village board could pass a measure with one aye, two abstentions and two absent.
Hall was decided in 1879 but has not been overruled or modified since that time and, in fact, has been relied on by other courts in more recent decisions. However, it was decided before the legislature repealed the special charters of municipalities and set forth a general charter for cities and villages in chapters 61 and 62 of the Wisconsin Statutes. Under the general charters, specifically secs. 62.11(3)(e) and 61.32, municipal governing bodies are free to set their own procedural rules and therefore can presumably devise procedural rules to deal with these problems. Section 40 of Roberts Rules of Order Newly Revised (10th ed.) provides that the quorum refers to the number of members present, not to the number actually voting on a particular question.
Once again, the difficult issue of abstention must be contended with. The Wisconsin Court of Appeals has held that when a board member is required by law to abstain from voting, that member is not present for calculating the number of votes required for the passage of legislation. (Ballenger v. Door County, 131 Wis.2d 422, 388 N.W.2d 624 (Ct. App. 1986).)
Unfortunately, that leaves unanswered the more difficult question of what happens when a member simply chooses to abstain but is not required to do so by law. No Wisconsin cases or attorney general opinions address the treatment of such abstentions, but the League has taken the position that abstentions should be treated as neither affirmative or negative votes. However, this differs from the majority view.
In the majority of other jurisdictions which have addressed the issue, courts have treated an abstention as acquiescence with the majority, the reasoning being that vital processes of government ought not to be halted or impeded by a council member's refusal to perform his duty of voting.
The reasoning behind this rule has been explained as follows: [C]ourts of other jurisdictions have steadfastly adhered to the doctrine that when members of a board present at a meeting, desire to defeat a measure, they must vote against it; that inaction on their part will not accomplish their purpose; and that their refusal to vote is, in effect, a declaration that they consent that the majority of the quorum may act for the body of which they are members.
Where abstention is used by members of a municipal body to block or impede the adoption of a measure or the appointment of an official, even though they would not have been able to achieve that objective by voting against, or in the negative, courts are more alert to possibilities and opportunities for obstruction and abuse of the governmental process and are more likely to conclude that a governing body member ought not to be permitted to accomplish by inaction (by failure to perform the duty of voting which is assumed with the office) a result or purpose which the officer could not achieve by proper participation in necessary decision making.
But the wisdom of this rule has been questioned when abstention is required because of a conflict of interest. It makes sense that a member's reason for abstaining may be relevant because where one abstains because required to by law or to avoid the appearance of impropriety, the policy reasons mentioned above would not apply. In fact, it would seem inappropriate to look upon a council member who abstains from voting because of a conflict of interest as having acquiesced with the majority or as having voted either in the affirmative or negative. Legal Comment, Governing Bodies # 346 R-1 (October 31, 2006) League of Wisconsin Municipalities. (citations omitted)
In dicta (meaning language not relevant to the court's ultimate legal conclusion, a federal district court wrote of the distinction between "not voting" and "voting present" or "abstaining":
By not voting, a council member does not prevent the body from functioning, as she might, for example, if by not voting she was not counted as a part of the quorum.... Rather the abstaining member simply does not aid the passage of the measure under consideration. If not aiding the passage of a given measure is equivalent to hampering the functioning of the body, then one would expect the Common Council to mandate that council members always vote "aye."
Permitting members to abstain is not functionally different from permitting them to vote no. When enough members abstain from voting on an issue, the measure will fail for lack of an affirmative vote by the majority of the body. The council may then proceed to the next order of business, as in any circumstance where a measure is defeated.
Wrzeski v. City of Madison, 558 F. Supp. 664 (W.D. Wis. 1983)
Because I have not had the opportunity to discuss with each abstaining member the specific reasons for each person's conflict of interest, I can only rely on what has been reported. Assuming its accuracy, the report indicated the abstaining members refrained from voting because of a conflict of interest with their membership or affiliation with the Chamber of Commerce. Presumably, the members interpretation of Sec. 19.59, Stats., guided each to abstain. The 1986 appellate court decision would then support this conclusion that the Plan Commission favorably recommended to the Council that the city purchase the Chamber building.
There was one other question raised as a result of this situation, specifically: whether members of an advisory body (that makes only recommendations to a higher body) must abstain when either the statutory or common law rules of conflicts of interest would otherwise indicate an abstention is appropriate. I find nothing in Sec. 19.59, Wis. Stats., that distinguishes between advisory and decision making bodies, nor has any case law been brought to my attention that imposes such a distinction on the statutory scheme. Without attempting to address the particulars that may affect a specific commission member's decision to vote, I also find nothing in the court decisions, of which I am familiar, that indicate a similar distinction. Therefore, without more information and analysis, I would encourage Commission members to adhere to the dictates of Sec. 19.59 and the common law rules of ethical conduct. If any member wishes to discuss this further, the member can contact my office for a private consultation.
TNX,Warren P. KraftCity Attorney Office