Tuesday, July 31, 2007

Racine, Haunted City

Labor activist Roger Bybee has a great piece in the July issue of The Progressive, "Racine, haunted city: look what happens when industry flees." The similarities between the Racine and Oshkosh experiences is painfully clear, especially as regards questionable economic development plans in response to deindustrialization. Some excerpts:

Inner-city Racine bears a haunted look, with its vacant factories and dilapidated houses. It is surrounded by a suburban ring of anonymous strip malls and relatively well-off white suburbs (the city itself is 20 percent African American and 14 percent Latino) and a harbor filled with luxury boats (owned primarily by wealthy outsiders) on the Lake Michigan side. The downtown has a Potemkin-village feel to it, with a front of neatly restored brick buildings hiding the squalor of the surrounding areas . . .

With the corrosion of the city's industrial base, Racine officials dreamed up one economic salvation scheme after another. Despite luring affluent boat owners from the Chicago and Milwaukee suburbs, the big publicly subsidized harbor project failed to produce the trickle-down effects predicted by its promoters. The latest idea, hailed in The New York Times, is that former factory workers will somehow find prosperity as Racine tries to convert itself into an artists' colony, replete with a new $11 million Racine Art Museum and about a dozen galleries on Sixth Street.

But twelve galleries and a museum will not fill the crater left by the loss of 13,500 factory jobs. Racine's unemployment rate consistently remains the state's highest, and many former industrial workers have been permanently demoted to low-wage, low-benefit jobs in the service sector from which they have little chance of rising. For example, after Chrysler wiped out 5,500 jobs in 1988, $7 million in public funds was spent on retraining the workers over three years. Yet after the retraining, 60 percent earned less than $28,000 (in 2006 dollars) and fully 20 percent remained jobless, according to a study by the University of Wisconsin-Parkside.

Racine is not the same city my grandparents came to or I grew up in. It is a victim of corporate globalization. But part of the fighting spirit remains.

Hey, here's an idea to revive Racine: build some class A office space on the waterfront and be okay with 95% of the tenants coming from already existing office space in the city. And they should definitely create more TIF districts (they currently have 9 active TIFs compared to 17 in Oshkosh).

Thursday, July 26, 2007

Last Tuesday's Meeting

Another long meeting (including workshops and an executive session we were not out of city hall until 1:45 a.m.) which would have been even longer had we had enough votes to do the right thing and reconsider the Akcess term sheet. If in addition we'd had more people come to speak about the smoking resolution (I was expecting 10-20 but I think we only had 4 or 5) we could have conceivably been there until 3 a.m. Oh well, at least we have air conditioning and a vending machine (though the latter broke down on Tuesday night!).

Some high and low lights of the evening:

*Some gentlemen came forward to say that they had been treated unfairly in a competitive bidding process. There seemed to be enough confusion as to how the bid was awarded so that the council felt comfortable asking administration to start the bidding process over again. I suspect that at some point we will have to take a closer look at the competitive bidding process--some controversial waiving of bids and confusion like we saw on Tuesday night suggests that it might be time to [at the very least] educate the council and the public about the law regarding bids.
*I was the only councilor to vote against an intergovernmental agreement with the town of Nekimi. Nothing against the town and city officials that negotiated the agreement, but it didn't set well as I read it. Such agreements always seem to be developer driven, and while they come with the rhetoric of "managing sprawl," they are in fact blueprints for how to engage in sprawl development with as little citizen complaint as possible.

I also find it odd that we would sign an intergovernmental agreement only between the city and town, when the last few years have shown us that county and school district are implicated in virtually everything we do. Yes, I know that the law does not require school district and county participation, but given the nature of the modern interaction between city, town, county, and school district(s) it would seem sensible to expand our understanding of "intergovernmental." I didn't say this at the meeting, but it occurred to me later that we really ought to be calling on urban planning specialists from UW Oshkosh or the UW Exension to serve at least in advisory roles as these deals are being hammered out.

I also cannot understand why the city would sign a 40-year agreement with a town when our own city comprehensive plan is reviewed every 10 years. County-town agreements are extremely difficult to change once they are signed, and so if in the next review of the comprehensive plan we come to the conclusion that the town agreement is not working, we are stuck. I think provisions should be placed in town/city agreements that make them subject to renegotiation at the time the comprehensive plan comes up for review. That way we we are not locking two generations of citizens and government officials into something that may not turn out to be helpful.

Finally, I cited Dr. Kevin McGee's 2000 paper on "County spending and the implicit subsidy to 'urban sprawl'" to suggest that the issue of "double whammy" taxation (i.e. city residents paying for town services that city dwellers themselves do not receive to the level that their rate of taxation would seem to require) needs to be dealt with in town/city agreements.

I thought other councilors seemed interested in what I had to say, but no one else offered any opposition or verbal support for the agreement and so it passed easily. Sprawl on, Wayne.

Smoking Ordinance Revision: I ended up voting against amending the ordinance. I said that the issue provided us with a conflict between the needs of small business and the needs of small-d democracy. As regards small business, there is no doubt that after 90 days "Joe's Dry Dock" (the establishment asking for the revision) will be able to allow smoking. However, in his first 90 days Joe is effectively at a competitive disadvantage with every other bar and tavern that allows smoking. I think everyone can sympathize with his predicament.

For better or worse, however, the smoking ordinance was put in place by a vote of the people in a referendum and I think it has to be something truly extraordinary and urgent for the council to amend it. A tavern owner having to wait 90 days before allowing smoking does not, in my judgement, provide enough strong rationale to amend an ordinance put in place by referendum.
The council voted against amending the smoking ordinance and so it will remain as is until the legislature and governor decide to pass a state wide ban.

Cottonwood Tree Ban: Mr. McHugh's ordinance failed by a 1-6 vote and received further trashing in today's Northwestern.

Roundabouts. Oshkosh News has a good summary of the discussion that led to the passing of this resolution. One thing the summary does not say is that I said that one of the possible benefits of the roundabout (though not the main reason I voted for it) is that we can get some public art placed in the circle. I think that might do much to enhance the aesthetics of the Jackson/Murdock area which is currently not the most attractive place in town.

Chamber of Commerce Building. I called this a "defining vote" for this council, as in my view most prior city councils would have had at least 4 and possibly as many as 6 votes to purchase the chamber of commerce building. On this council, the purchase failed by a vote of 0-7, though some of the councilors seem to think that we might purchase the building in the future. In voting against such measures, is this council "anti-progress?" Nope, we just seem more willing to be skeptical of the Department of Community Development's definition of progress.

Akcess Reconsideration. The vote to reconsider failed on a 3-4 vote (Esslinger, McHugh, Palmeri voting to reconsider), meaning that McHugh could not engage in a public discussion of the Akcess term sheet and its possible similarities to the disastrous 100 north Main St. project. I found this vote disappointing and I do believe the council will live to regret it when it becomes clear (perhaps years from now) that there are problems in the term sheet that could have and should have been discovered before a shovel breaks ground. I hope I'm wrong.

On the convention center workshop, my entire purpose in asking for a second workshop was to allow for more citizen input. Because the workshop started so late, we did not get much input. Still, I was encouraged to see that just about every councilor expressed discomfort with TIF financing of the project. I don't think in the history of Oshkosh politics since the 1970s has there ever been a council as suspicious of TIFs as this one. Hopefully by early next year we will have some quality information on how our existing TIFs are actually performing.

The Oshkosh Northwestern has a summary of where we are as regards meeting in closed session to discuss the city manager's performance.

Monday, July 23, 2007

A Cheap But Funny Shot

All seven members of the Common Council and City Manager Wollangk received a letter dated July 20 from "Impatient Taxpayer." S/he wrote:

Tune in Tuesday Nights 6 p.m. for the "Tony Palmeri Show" with featured guests, Paul Esslinger, Dennis McHugh, Jessica King and Bryan Bain. Tonight's topics will be: sewers, ducks, geese, floating docks, and street lights. Each of these people will get three chances to explain what they are trying to explain, and if you don't get it, then they will do it all over again at the next meeting. They will repeat questions and all will get to talk, otherwise it will look like they are not doing their jobs.

Mr. Bain brought up a good point, about repeating, or talking to(sic) much, which surprised me, because he is usually the one that is always talking and forever trying to explain himself. Then low and behold if you people didn't have the guts to talk for half an hour about talking too much.

Stop putting on a show and make a decision; you're on the Oshkosh Council, not 60 minutes.


Impatient Taxpayer

I think that's funny, but I don't think Bryan or any other member of the Council has been talking too much. Believe me, if it was the "Tony Palmeri Show" the meetings would be going on much longer as I frequently find myself wanting to question the other Councilors but almost always hold back due to time issues. I'm sure every other Councilor does the same.

I think the meetings have been longer this year for some good reasons:
*Councilors are coming to the meetings prepared to discuss all the agenda items INCLUDING the "Consent Agenda" which traditionally does not get as much discussion. For example, we had a proposal a few weeks ago to annex into the city property that will become a tax-exempt church. Normally proposals like that get passed with no discussion, but I thought it valuable to introduce a discussion of the wisdom of annexing into the city property that will obtain city services covered by property taxes and yet not pay for them. Other councilors have introduced discussions on consent agenda items, and I think that's good.
*I could be wrong, but it does seem that more citizens than usual are speaking on proposed resolutions and ordinances. We all say we want more citizen input, so that too is good.
*It is true that this council does ask many questions and sometimes they are repetitive. We probably do need to be more mindful of that.
*Finally, I think most members of the Council feel compelled to offer rationales for their votes, sometimes lengthy rationales. I personally like to hear why and how a councilor has come to a decision, so I am not bothered by those statements even if they are lengthy. (Probably as more councilors see their statements held up for scorn on YouTube or mocked as "lecturing" they might say less--I think that would be unfortunate.).

I plan to continue to say what I think needs to be said (and ask what I think needs to be asked) while being respectful of time and the need to move the meetings along. I'm quite sure every other councilor would say the same.

Convention Center Workshop: Public Comment Allowed

After Tuesday night's Common Council business meeting, there will be two workshops: one dealing with the water utility and one dealing with the Oshkosh Convention Center. The public will be allowed to speak during the Convention Center workshop.


Unfortunately, because our business meeting will probably be quite lengthy (we are dealing with items that will require much time to deliberate, especially the proposal to amend the smoking ordinance, the proposal to approve roundabouts for the Jackson/Murdock intersection, the proposal to buy the chamber of commerce building, and the proposal to reconsider the Akcess term sheet agreement), the workshop probably won't start until well into the evening.

Please do email me (tpalmeri@ci.oshkosh.wi.us) or call (235-1116) if you wish to be heard on any of these topics but cannot make the meeting.

Tuesday, July 17, 2007

Council Update

Here's some Common Council happenings:

1. We had a special meeting tonight to discuss the creation of new boards and commissions. We reached consensus on the following:
*Mayor Tower will approach former Oshkosh mayors about their willingness to be involved in a Commission on Poverty. After their involvement is secured, more time will be spent trying to give focus to the Commission.
*My ideas for a Budget Committee and Street Repair Commission may become part of a revived Citizens' Advisory Committee (The CAC was disbanded some time ago when it stopped being the body that made recommendations on how to disperse Community Development Block Grant funding. Councilor Esslinger believes that the CAC should once again have that role, but no decision on that was made at the special meeting.).
*My other proposal was for the development of an Economic Development Commission. By consensus we decided that we should first hold an Economic Development Summit (Mayor Tower's idea). One possible outcome of that Summit could be the development of a formal Commission.
*Bryan Bain proposed two new bodies that received much favorable feedback: a Waterways Committee and and "Oshkosh Council" that would bring together officials from the Council, School Board, County Board, and other governmental units. The Waterways Committee was especially well received because the current responsibility for water currently rests with an over burdened Parks Department.
*IMPORTANT: It turns out the the city already has an "Energy and Environment Advisory Board" on the books. This is the perfect vehicle from which to bring forth proposals for Sustainable Oshkosh. Nine citizens will be appointed to the Board. If you are interested in serving, please contact me or Mayor Tower (ftower@ci.oshkosh.wi.us) immediately.

2. Councilor Dennis McHugh, who voted in the majority to amend the Akcess Acquisition Group waterfront term sheet, is apparently going to ask that the resolution be reconsidered at next Tuesday's meeting. My assumption is that McHugh would have voted differently if, at the time of the vote, he had knowledge of the 100 block fiasco.

3. McHugh has also called for a closed executive session after next Tuesday's meeting to discuss the city manager's performance. Here too, it is probably the handling of the 100 block situation that led to the call. As noted by Cheryl Hentz, the handling of that situation fits a pattern that continues to frustrate councilors who cannot do their (our) jobs without complete information delivered in a timely fashion, while at the same time angering a public that made it clear in the last election that transparency and openness should be the rule and not the exception in city hall.

Should be an interesting next couple of weeks as the council wrestles with how to ensure accountability in city hall. Stay tuned.

Thursday, July 12, 2007

The Business As Usual Test, Part 2

Yesterday I applied the Business As Usual Test (BAUT) to the Convention Center remodeling resolution. Today I'll apply the test to the resolution at Tuesday night's meeting that would have revised the term sheet the city signed with Akcess Acquisition Group to develop the waterfront. As a practical matter, a yes vote on the resolution meant giving the green light to Akcess to proceed with the development of an office complex and probably a hotel/restaurant.

Applying the BAUT, I voted no on the resolution. To review, the three planks of the BAUT are:

*Limited public input
*Limited public buy-in
*Questionable financing and/or development

Let's apply each plank to the Akcess situation.

*Limited public input: The Akcess developers must be given credit for being open and accessible. I pointed out at the meeting that if the developer of the ill-fated Five Rivers Resort were in the room, I would not be able to recognize him even though the city spent two years in negotiations with him. Not so with Fred and Tim Rikkers of Akcess; they have invited public comment and been open to questioning about their plans.

*Limited public buy-in: This is a key problem. Originally, the developers talked about bringing in a grocery store, retail, and possibly a "living learning community" in cooperation with the university. That was replaced with a proposal for an office building after the developers claimed that no grocers would locate on the waterfront. The office building soon became the major project that, according to the developers, must occur before anything else can happen.

I cannot speak for any other member of the Common Council, but outside of Chamber of Commerce circles the feedback I have received on the office space proposal has been about 5-1 against. The main concern expressed has been that, especially since the developers themselves admit that in all probability 95% of the office tenants will be businesses already in town, the proposal in effect creates more empty space with little likelihood of filling it. Other individuals simply think an office complex is not appropriate for the waterfront for citizen access reasons (i.e. it's really not something the average person has any use for).

At the meeting I said I could support a project that does not have public buy-in if I felt that I could sell it to the public. Unfortunately I do not feel I can sell the office complex to the citizens, at least not with a clear conscience.

*Questionable financing and/or development: I've been uncomfortable with the "Master Developer" designation given Akcess from day one, mostly because it is still not clear to me what oversight powers the City Council has as regards the projects in question. Councilor King asked some excellent questions in this regard at the meeting.

Another red flag that went up for me in the last few months concerns the proposal to buy the Chamber of Commerce building (for half a million bucks) and raze it to align two roads. It's becoming clear that if the office complex is built the Chamber of Commerce stands a strong chance of moving into it, and that will put more pressure on the Council to approve the Plan Commission's recommendation to buy the Chamber building. Other than the 4 members of the Plan Commission who voted for the Chamber building plan, I can find few people in town who want to tear down a structurally sound downtown building.

So while Ackess's more open approach to development is appreciated, in the final analysis the project(s) proposed do not have the amount of buy-in necessary to move forward, the projects themselves are difficult to sell to the public in the absence of buy-in, and the city's development plans continue to be murky (to put it mildly).

My views as expressed above did not prevail, and the resolution passed by a vote of 5-2. If I understood the discussion, there should be a formal vote on the office complex coming up at a future meeting. At this point I can't imagine why someone would vote for the revised term sheet and then vote against the office complex, so as a practical matter it looks like we'd better start developing a strategy to handle the vacated spaces that will emerge as businesses relocate to the riverfront.

Wednesday, July 11, 2007

The Business As Usual Test

At Tuesday night's Common Council meeting I announced that from now on I plan to apply the "Business as Usual Test" to every economic development proposal that comes before us. Challenging or putting an end to business as usual (BAU) was one of the main themes of the campaign season, and pretty much every candidate said that BAU was unacceptable.

At the meeting I characterized business as usual as:
*Limited public input
*Limited public buy-in
*Questionable financing and/or planning

I applied the test to two important resolutions on the agenda, and ended up having to vote against both because neither was sufficiently divorced from BAU.

The first resolution would have directed city staff to prepare a tax incremental financing (TIF) district proposal to pay for the city's contribution toward rebuilding the convention center. I believe that the city has a responsibility to maintain property that it owns, and so I do want to be able to support a credible proposal to renovate the Center. Unfortunately, what we have done so far is business as usual:
*Limited public input: On June 26 the council had a workshop on the convention center that occurred at around 10 p.m. No members of the general public were invited to speak. The only chance the public had to address the Council on this matter (other than via private correspondence) was at the Tuesday night meeting.
*Limited public buy-in: Almost all the public commentary (at least that I have heard) on the Convention Center has been negative. I have been surprised at the number of people I meet out and about who are familiar with Dr. Kevin McGee's op-ed on this matter. Those who identify with McGee's piece seem concerned mostly with the financing of the project. Other people are concerned about the size of the structure (they think it's too small), others think it should be torn down, and others don't accept the argument that a renovated Convention Center will boost the downtown economy.
*Questionable financing and/or planning: Fifteen minutes before the start of last night's meeting, Councilors were given a memo from Community Development Director Jackson Kinney saying that the existing TIF from which money would be borrowed (TIF #15) could be closed this year. However, "If TID #15 were utilized as a donor to proposed new TID #22, it would be anticipated that TID #15 would terminate in 2027."

I pointed out during the meeting that Oshkosh, with 17 active TIF districts in place, is far ahead of other northeast Wisconsin communities (Fond du Lac = 8, Appleton = 6, Green Bay = 12, Neenah = 4, Menasha = 9). One of city manager Wollangk's goals for the year is to prepare a report summarizing progress in the TIF districts. I argued that before any new TIF is created, we should see that report. Why create a new TIF if it turns out that progress in those existing is not sufficient?

Going into the meeting last night, I thought that there were 4 votes for the Convention Center project as proposed. I was pleasantly surprised to see that we challenged BAU, and will hold another workshop at which citizens will be invited to participate and at which city staff will be prepared to discuss alternative financing mechanisms. The Council voted to table the resolution calling for creation of the TIF proposal; I voted against tabling because I don't see TIF as viable for the project and so I thought it would be better just to defeat the resolution.

I'm teaching a summer class and am running out of time. Sometime later today or tomorrow I will apply the Business as Usual Test to the Ackess Waterfront proposal.

Monday, July 09, 2007

Kunstler on Live Earth

I don't always agree with sprawl debunker James Howard Kunstler, but his writing never fails to crack me up. Here he is today blogging about Live Earth:

Am I the only one who wonders whether rock and roll extravaganzas in the service of Great Causes might be exercises in grandiosity and futility? What I wonder especially: is this the only way we know how to respond to the difficulties that life on earth presents -- to engage a corps of professional narcissists to strut and pose in stadiums, affecting to wave their magic wands (or Fender Stratocasters) and make everybody feel better about a given problem (distress on the farm, disease in Africa, global warming....)? Can't we think of other, more meaningful things to do? Or are we stuck in a perpetually delusional rut of Woodstock-style symbolism, out doing a global rain dance instead of really changing our behavior?

I'm not convinced that these big public service rock shows do much harm -- other than perhaps inflating our expectations and using too much electricity -- but this particular one galled me a little.

For one thing, even though global warming is by definition a global problem, the notion of a global community as a permanent fixture of human history is, I think, a mirage. If there is any salient macro implication to the problems I term the long emergency, it is that the world will soon become a bigger place again; the great nations will soon retreat to their own corners of the world as they powerdown by necessity; and all the trade relations, cultural exchanges, and geopolitical conceits that have lately made the Earth seem like a big international hotel give way to much more local issues of sheer survival.

There was so much about the Live Earth show that actually expressed what is worst about the current state of American culture: the obscene posturing of zillionaire celebrities, awarding themselves brownie points for the largeness of their concern -- even while, like Mr. Sting of the band called the Police, they buy-and-sell $20 million Manhattan condos, and burn god-knows-how many tons of Wyoming coal amplifying the bass runs to "Roxanne." And the flip-side of these celebrity pretensions, of course, is the disturbing fealty paid to them by the fans, as members of the public caught up in celebrity-worship are called. Obviously, the whole thing is a kind of self-reinforcing feedback loop spiraling up to ever worse grandiosity on the part of the celebs and ever more pathetic groveling worship of these fake gods by the fans -- until it becomes little more than an object lesson in the tragic limitations of the human condition.

Looming behind the spectacle like some Macy's Thanksgiving Day balloon, is the puffy figure of Al Gore, who has managed to turn his journalistic accomplishment into something uncomfortably like a Nuremberg rally. I say this perhaps incautiously, not because I believe that Al Gore is a bad person, but because it could get to the point here in America, not far down the line, when a desperate public will beg some political leader to push them around, to tell them what to do, to direct their behavior in some purposeful way to save their asses. And these prancing, preening rock and roll celebrities may be paving the way, so to speak, for some corn pone American fascist to strut his stuff for an American audience worried about the growing darkness, and the falling needle on their car's gas gauge.

The last thing we need now is the carefully packaged postures of concern from "stars." Al Gore could do a lot more good militating to get regular hourly passenger train service running between Nashville and Atlanta, or stomping his state, from Memphis to Chattanooga for swapping sales tax on regular merchandise for a higher tax on gasoline. Or, he could just put aside his pretensions for being a kind of global Wizard of Oz and just cut the shit and run for president of the US, where he might actually make a difference.

Friday, July 06, 2007

Kraft Opinion On Plan Commission Vote

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,, 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

Wednesday, July 04, 2007

Plan Commission Vote

First of all, do you think the Chamber of Commerce has enough representation on the city's Plan Commission? (Some people think that 3 university employees on the 7-member Common Council is too much, but at least the voters have the power to change that.). According to today's Northwestern, three members of the Commission voted "present" on a plan for the city to purchase the Chamber building "because of their ties to the Chamber."

The Commission voted 4-1 with three voting present, sparking confusion about whether 4 yes votes was enough to pass the plan. I'm not sure why there should be confusion. In chapter 2 of the city's municipal codes the voting procedures for boards and commissions are spelled out quite clearly [Article VI, sec. 2-36(H)]:

"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." With 9 members present, the Commission needed 5 votes to pass the plan.

Ultimately it probably does not matter whether or not the Plan Commission adopts the plan. I'm pretty sure that under state law the Common Council can act on anything brought before the Plan Commission if the latter body does not act within 30 days. So if the Plan Commission simply does nothing at this point I imagine the Council can act on the plan in mid-August.

I received an interesting email from an Oshkosh resident yesterday on the topic of the city proposing to buy the Chamber building:

Earlier this year the Chamber put forth a proposal for the city to buy its building so that the chamber could move into the new riverside development. This public subsidy for the "champions of free enterprise" was good for the taxpayer, the chamber argued. The taxpayers thought otherwise and the idea was dropped.

Fortunately for the chamber and the riverside developers, the chamber building now poses a great threat to public safety and must be purchased by the city to protect the lives of kids and other innocents. This is absolute bs.