Loading...
HomeMy WebLinkAboutRES 072 Draft 01 1988-1992OFFICE INFORMATION ONLY Meeting: July 19, 1989 Action: Adopt Resolution 72-89. Re: Res. 72-89/FC-81 COUNTY OF HAW/~~,~ ",;.;,.STATE OF HAWAII RESOLUTION No, '72 89 AMENDING RULE 11 OF THE RULES OF PROCEDURE OF THE COUNCIL OF THE COUNTY OF HAWAII RELATING TO OFFICERS AND THEIR DUTIES. BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that Rule 11 of the Rules of Procedure of the Council of the County of Hawaii is hereby amended to read: "RULE 11 \/!1 T T LIt+ 1. There shall be seven (7) methods of voting: (a) By voice vote (b) ey raising of hands (c) By signing as concurring with a committee report (d) By ballot (e) By rising (f) By unanimous consent (g) By roll call 2. Except on procedural motions, all voting shall be by roll call vote. 3. On procedural motions, th question, shall call for an "aye" announce the result. 4. If any member shall doubt chairperson shall again state the chairperson, after stating the and "no" voice vote and thereupon the result as announced, the question and call for a vote by raising of hands. The county clerk shall count the raised hands and the chairperson shall announce the result. 5. Voting on every bill, resolution, or non-procedural motion shall be by roll called by the county clerk. Each member, when called, shall answer in a clear voice "aye," if voting the affirmative, or "no," if voting in the negative. The county clerk shall record each vote in the minutes and report to the chairperson, who shall announce the result to the council. 6. No member shall refrain from voting unless excused by the presiding officer or is, otherwise, excused as provided herein. Unless a member is excused from voting, silence shall be recorded as an affirmative vote. 7. Any member who has a personal interest, direct or indirect, in an action proposed or pending before the council, shall disclose such interest prior to the taking of any vote thereon. Any member who has a substantial financial interest directly affected in any action proposed or pending before the council shall refrain from deliberating on said action and shall be excused from voting on the matter thereon. "Substantial" means an interest which is sufficient in magnitude to influence one's official action. "Financial interest" means an interest held by an individual, his or her spouse, or dependent children which is (a) an ownership interest in a business, (b) an employment, or prospective employment for which negotiations have begun, (d) an ownership interest in real or personal property, (e) a loan or other debtor interest, (f) a directorship or officership in a business. 8. Whenever the ayes and noes are called, no one shall be permitted to explain their vote. After the announcement of the result, no one shall be permitted to change their vote. 9. In the event of a tie vote the following procedures will be promulgated• (a) In the case of a tie vote on any matter considered by a committee, the committee shall place the matter on the agenda of the committee's next meeting. Should the tie vote continue, the matter shall then be referred to the Council with no recommendation. (b) In the case of a tie vote on any matter considered by the Council, the matter shall be placed on the aoenda at the next council meeting. However, should the Council be unable to derive any majority vote on any matter due to abstentions or members being excused from voting, the motion shall be determined to have been denied. In determining the motion as having been denied, the matter need not be filed by a motion adopted by the maiority of the Council." Dated at Hilo, Hawaii, this 19th day of July , 1989. INTRODUCED BY: ~~~... UNCI MEMBE , C NTY HAWAII COUNTY COUNCIL County of Hawaii Hilo, Hawaii I hereby certify that the foregoing RESOLUTION was by the vote indicated to the right hereof adopted by the COUNCIL of the County of Hawaii on July 19 , 1989 ATTEST: COUNTY CLERK CHAIRMAN & PRESI ING OFFICER ROLL CALL VOTE AYES NOES ABS EX DOMINGO X HALE INOUYE KOKUBUN LAI MAKUAKANE RUDDLE X SCHUTTE X YAMASHIRO 7 0 2 Reference C-638/FC-81 RESOLUTION NO. ~2 ~9 REPORT OF THE COMMITTEE ON FINANCE Date: July 11, 1989 Re: Comm. 638 Place: Ra'u High & Pahala Elementary School Cafeteria Time: 10:00 a.m. Chairman and Members Hawaii County Council Hilo, Hawaii 96720 Your Committee on Finance, to which was referred Resolution No. 72-89, reports as follows: The purpose of Resolution No. 72-89 is to amend the Rules of Procedures of the Council by establishing procedures to address votes which end in a tie and/or situations where a majority concurrence is not possible. Communication No. 638 from Councilmember Lorraine R. Inouye explains that the resolution is the result of a legal opinion rendered by the Deputy Corporation Counsel in Communication. No. 566, dated P4ay 25, 1989. In the memorandum, the Deputy Corporation Counsel cited that in the case of Carpenter v. Whitley County Planning Commission, the conclusion of the court was that there can be no "official action" without a majority's concurrence. Resolution 72-89 provides the addition of a new Section 9 to Rule 11. Subsection 9 (a) provides that in the case of a tie vote at the committee level, the committee shall consider the matter again at its next meeting. Should the tie vote continue, the matter shall be referred to the Council with no recommendation. Subsection 9 (b) provides that in the case of a tie vote at the Council level, the matter shall likewise be placed on the agenda of the Council's next meeting. Should the Council be unable to derive any majority consensus, the motion shall be determined to have been denied. In such instances, the matter need not be filed by a motion adopted by the majority of the Council. Subsection 9 (b) does not limit itself to addressing matters ending in a tie vote situation. It also recognizes that there may be instances due to abstentions or conflicts of interests that a majority consensus would not be possible. In such instances, your Committee agreed that the motion on the matter would be deemed denied and that the matter need not be filed by a motion adopted by the Council. FC REPORT NOS 81 ADOPTED: JUL 1 ~ 1984 FC-81 Pace 2 July 11, 1989 Your Committee on Finance concurs with the intent of Resolution No. 72-89 and recommends its adoption. HELENE H. HALE, VZCE CHR. ..~~II``''~ ` Y~~, ~ O TA SHI DOMI G0, MEMBER ,, / ~. ~:f I r:_.rL,'~-~w.. J".~ f~/~l6v~G~'~f,Cl STEPHEN K. YAMASHIRO, MEMBER LA/TY/HAT LORRAINE R. IN OUI'G Cuunnlu nrnan CO[I:~T]" COCI,~CIL .. c,ru~~t,, ,.j H.rt~~~tt HILLLII C~ouruc Huil,~wg Z~ :l upum 1tr¢t Hdo. Haunt 96120 June 22, 1989 T0: Councilmembers FROM: Lorraine R. Inouye, Councilmember SUBJECT: Amendment to Rules of Procedures of the Council Relating to Tie Votes Pursuant to the Finance Committee's action to file the memorandum from Deputy Corporation Counsel Frederick Giannini relating to tie votes, as Chairperson of the Finance Committee, I have prepared an amendment to the Rules of Procedures. Attached please find a resolution to amend the Rules of Procedures of the Council to address future situations whereby a tie vote or a less than majority vote may occur. The amendment proposal addresses situations at the council and committee levels. Please note that the amendment proposal also includes situations when members may abstain or be excused from voting. Att. ~(-~- b~' 8 - . -- T^ ~------ COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, HI 96720 MEMORANDUM Mr. John Wagner May 25, 1989 To: County Clerk Date: Frederick Giannini, Deputy Corporation Counsel From: Tie Votes by the County Council SubJect: This is in response to your May 12, 1989 memorandum in which you raised the following questions: 1. When a council vote on a motion results in a tie, does the charter require that the motion then die, and be revivable only by a motion to reconsider, or is the motion merely held in suspension, to be carried over to another meeting for another vote? 2. Is it permissible for the council to adopt a rule which would provide that in the event of a tie vote, or a failure to receive a majority vote of all the members in favor of or against an item, the item would automatically be deferred and placed on the agenda at the next council meeting? Our response is that the charter does not require either of the two alternatives to be followed, but does permit either one to be followed. Consequently, it would be not only permissible but advisable for the council to adopt a rule of procedure stating what course is to be followed in the event of a tie vote or of a failure of a bill to receive a majority vote of all the council members. If the council wants a tie vote to result in the item's automatic placement on the agenda for the next meeting, then it simply needs to amend its own rules to provide for it, because the charter does not prohibit such a result. Likewise, if the council wants a tie vote to result in the "death" of the item, then an amendment to the council's rules of procedure providing so would make that the course to be followed. The Hawaii County Charter, §3-8 states that an "affirmative vote of a majority of the entire membership shall be necessary for council action." This makes it clear that five votes, a majority of all of the seats on the council, are necessary to enact legislation. It does not answer the specific question of what happens to a motion which receives a tie vote, or a vote of less than a majority of all of the members. That leads into a consideration of whether or not a failure to receive a majority vote is an "action" by the council. c: :=G Mr. John Wagner Page 2 May 25, 1989 The question of what consitutes an "action" and whether or not an action is final is not one with a definite answer. The general rule was stated by a federal court in People Qf the State California gx rel• Younger v. Tahoe Regional Planning Aoencv TRPA , 516 F.2d 215, 218 (9th Cir. 1975) cert. ~_ 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed. 2d 97 (1975): Generally, once a quorum is present, any vote by an organization on any proposal is considered 'action.' Thus, if there is a proposal on the floor for approval of a new meeting time, and it fails to gain a majority vote, (e.g. the vote ends in a tie), 'action' has been taken and the proposal is considered rejected. See Robert's Rules of Order Newly Revised §43 (1970). A number of jurisdictions follow this interpretation of the law. In Montgomerv Cou to Y Bo r 2~ Appeals v. Wa k r, 228 Md. 574, 180 A.2d 865 (1962), the court considered a case in which a five-member board, due to an abstention, ended up with a 2-2 vote. The controlling ordinance required that all actions or decisions of the board must be taken by resolution in which at least three members concurred. This is equivalent to a requirement of an "actual majority" of the membership. The court held that the failure of the proponent to obtain these affirmative votes was in legal effect a denial of the motion. 180 A.2d at 869. Other jurisdictions use similar reasoning. Albini v. Board Appeals, 41 Misc. 2d 783, 246 N.Y.5.2d 506 (1964); Stafford Smith v. Zoning Board of Adjustors of Madison, 59 N.J. Super. 553, 158 A.2d 223 (1960); Sokolis v. Zoning Board of Anneals, 21 I11. App. 2d 178, 157 N.E.2d 427 (1959). State of Hawaii, Attorney General's Opinion #80-1. In addition to this general rule, however, it is also lied accepted that where a different meaning of "action" was supp by rule or ordinance, then that meaning would apply rather than Robert's Rules of Order. TRPA, supra, at 218. Therefore, if the council's rules of practice and procedure specifically provide that a tie vote results in the automatic placement of the item on the next meeting's agenda, the tie vote would not result in the defeat of the item. This is also consistent with the council's rules of practice and procedure, since Rule 27 already provides that Robert's Rules of Order govern where the council's rules are silent and not inconsistent. The proposed rule would simply remove an area of silence. Mr. John Wagner Page 3 May 25, 1989 Considering a tie vote as not being an action of the council is not without precedent. In Carpenter v. Whitley Countv Planning commission, 367 N.E.2d 1156 (Ind. App. 1977), the court considered a tie-vote situation in which the authorizing statute stated that no official action could be taken unless authorized by a majority of the commission. The conclusion of the court was that there can be no "official action" without a majority's concurrence. Thus a tie vote, unlike a majority of "yes" or "no" votes, could not be an "official act." Opinions in California have likewise acknowledged that tie votes need not be considered official actions on a motion. Reeves v. City cif Burbank, 94 Cal. App. 3d 770, 156, Cal. Rptr. 667 (1979); Woodland Hills Residents Ass n. Inc• v. City Council of Los Angeles, 94 Cal. App. 3d 825, 118 Cal. Rptr. 856 (1975); Anderson v. Pittenger, 17 Cal. Rptr. 54 (Cal. App. 1961). Therefore, it must be concluded that if the council wishes to establish a practice of carrying tie vote items over to the next agenda, may do so because such a practice does not contradict the charter. However, to avoid confusion in the future, such a practice should be formulated into a rule. Please contact this office if you have any questions. FG:mo APPROVED: ~~ ~ ~ ~- RIC ARD I. MIYAMOTO Corporation Counsel