Ann Arbor city attorney Stephen Postema has complied with the city council’s direction to produce a written opinion on the question of the legal validity of the council’s 6-5 vote taken on Sept. 16, 2013 – to appoint Al McWilliams to the board of the Ann Arbor Downtown Development Authority. [.pdf of Oct. 16, 2013 opinion]
In reaching the conclusion that the vote is legally valid, Postema relies on the city charter, the council’s rules and Robert’s Rules of Order. The opinion relies on the basic principle that objections to a conclusion that a motion has passed must be made in a timely way.
Postema’s opinion does not attempt to settle the question of whether an 8-vote majority should have been required for McWilliams’ appointment. Eight votes arguably should have been required, given the nomination’s withdrawal and apparent subsequent re-introduction by mayor John Hieftje, which made the confirmation a one-step process, requiring eight votes under the council’s rules.
Postema’s opinion indicates that for the purposes of the legal validity of the vote, it does not actually matter if eight votes were required or not. Even in a situation where a name is brought forward for the very first time and the council is asked to vote on it – which would clearly require eight votes under the council’s rules – a vote tally of 6-5 would be legally valid, if no timely objection were made to the conclusion that the motion had carried.
Postema’s written opinion on the matter marks the first one he’s written and filed with the city clerk since he began working for the city of Ann Arbor over 10 years ago in April 2003. The city charter contemplates the writing of opinions as a part of the city attorney’s job responsibility: “The attorney shall … advise the heads of administrative units in matters relating to their official duties, when so requested, and shall file with the Clerk a copy of the entire Attorney’s written opinions; …”
A motion to reconsider the McWilliams appointment was made at the council’s Oct. 3, 2013 meeting, and was immediately postponed until the council’s meeting on Oct. 21.