Agreed.

There is a case from the Michigan Court of Appeals that likely provides authority for your position: Lysogorski vs Bridgeport Charter Township, 256 MichApp 297 (2003) where a person appearing at a board meeting was denied the opportunity to speak on an issue that arose during the meeting due to a rule limiting public commentary to the beginning of the meeting.

As to “public hearings” the rule is different and Haven vs City of Troy held in an appeals opinion that public notice of a hearing implies the requirement that the topic of the hearing be imparted within the public notice so that the public may appear to give commentary on the issue to be heard.

While I believe Lysogorski is bad law and bad public policy, it is binding on our lower courts in Michigan.

Which section of the OMA do you think was violated?

The Open Meetings Act has requirements for noticing meetings of public bodies and requires an opportunity by members of the public to address the public body. But there’s no OMA prohibition against adding an item to the agenda from the floor at a meeting. And there’s no requirement that the opportunity to address the public body has to come before the body votes on a particular matter.

Which is not to argue that it’s a good idea to spring things on the council and the public so that the effect is to deprive the public from an opportunity to comment on a matter. It’s just that I really don’t think it’s an OMA issue.

A clear issue is Open Meetings Act non-compliance.

Right. And the way the withdrawal of a motion works is described in the column; it factors into the clear argument in the column against the idea you promote – that what happened was only a withdrawal of the motion, as opposed to the nomination.

Specifically, you assert: “… since the Mayor asked for permission from the movers of the motion, it could have as easily been interpreted as withdrawing the motion.”

I don’t think it could be interpreted that way at all, and certainly not easily, and especially not by you at the time, Chuck – because you did not believe at the time that Robert’s Rules even recognized the concept of withdrawing a motion. So to you it must have been completely nonsensical.

I’m not sure what you mean by a “semantic argument” because what you’re posing is a syntactic question. What is the object of the verb “withdraw” in the sentence: “I would ask the mover and the seconder to allow me to withdraw this nomination tonight.”? Chuck, your position appears to be that it’s really hard to tell what the object is of the verb “withdraw”. I don’t think it’s hard to tell. The object of the verb is “this nomination.” Where’s the ambiguity?

I think you’re still not quite grasping the distinction between the mayor’s role and the councilmember’s role in this procedure. It’s for the mayor to nominate someone with a performative utterance along the lines “I’d like to place before the council the following nominations …” That happened on Aug. 19. Typically, at a subsequent meeting, a councilmember moves the question, it gets seconded, and the confirmation is then before the council. That happened on Sept. 3. Now, on Sept. 3, the mayor asked permission to do something after the motion was before the council. That’s uncontroversial. What was that thing? You claim it’s possible that the mayor’s request could be interpreted as meaning that he wanted to be allowed to withdraw Taylor’s motion?? That’s just nonsensical. The only rational thing that the mayor could be asking permission for himself to do in this context is to undo the thing he’d done himself through a performative utterance on Aug. 19. Specifically, he asked permission to withdraw the nomination, was granted permission and then did so.

The obviousness of this understanding is reflected in the public record in Legistar that strikes through the nomination and notes that it was taken off the table.

If you do not believe that saying, “I’ll withdraw the nomination tonight,” actually removes the nomination from consideration by the council, what action do you believe would accomplish that? Otherwise put, let’s say it’s the intent of the mayor to remove a name from consideration that had previously been put before the council – so that it’s clear to everyone that the council won’t be asked to vote on it at a subsequent meeting (unless the nomination is placed before the council again.) How else could he possibly do that except to say to the council at a meeting, “I’m withdrawing the nomination of [person name] to the [board name] tonight.”?

Re: “This interpretation is further supported as they Mayor modified “withdraw” with the word ‘tonight.’” ?? I don’t see how. If you want to flesh out that as an argument, I’d be interested in hearing it. I think the addition of the word “tonight” pretty well pins down the interpretation that it’s the nomination that has been withdrawn. Paraphrase: “I’ll withdraw the nomination tonight, but may put the nomination before you again.” That’s fine, and if the nomination is put in front of the council again, then it needs to wait another meeting for a vote, or else achieve an eight-vote majority.

Re: “… correct me if I’m wrong, Dave, but I believe that the ruling that “motion carries” was made by the Clerk, not the Mayor as presiding officer.” On a roll call the clerk administers the call of the council tallies the vote and reports it to the mayor. But it is for the mayor as presiding officer to affirm the outcome officially. That’s your Council Rule 5: “In all cases where a vote is taken, the Chair shall decide that result.” So what you typically see in the minutes on a roll call vote is: “On a roll call, the vote was as follows with the Mayor declaring the motion carried.” Reviewing the video, on that occasion, Hieftje simply said, “Thank you,” not his usual, “It’s approved,” or “It passes.”

So if it comes to formulating the verbiage that goes into the annotation of the minutes, to the extent that the error is attributed to a person, that person, by Rule 5, would be Hieftje, I think.

The remedy that’s proposed in the column – annotation of minutes with declaration of failed vote, nomination on Oct. 7, confirmation on Oct. 21 – respects your desire, I think, to have a process to remedy this that respects: majority rule with minority rights, no surprises, don’t manipulate absences.

My prediction is the city attorney’s office says something along the lines of: Under the DDA statute, it’s for the governing body to appoint members of the DDA board under its rules, so it’s the council rules that are at issue and their interpretation, and because the matter here concerns a council rule, what was said and documented can be interpreted in the manner that the council as a body wishes to interpret it, and can be addressed now or remedied in some fashion if that’s the desire of the body, and it can do so in the manner that the council as a body deems suitable.

Regarding what the meaning of “withdraw” is, I had previously been under the impression that Robert’s does not recognize withdrawing a motion. I was wrong. Robert’s allows for 2 ways to withdraw a motion:

1. The mover can withdraw it without any approval necessary before the chair has stated the motion;
2. A motion can be withdrawn my unanimous consent or majority vote;

http://www.rulesonline.com/rror-04.htm#27(c)

Council Rule 10 affirms this practice “When any motion has been made and seconded, it shall be stated by the Chair and shall not be withdrawn thereafter except by consent of the majority of the members of the Council present.”

Note, this only applies to a motion, and since the Mayor asked for permission from the movers of the motion, it could have as easily been interpreted as withdrawing the motion. This interpretation is further supported as they Mayor modified “withdraw” with the word “tonight.”

Since, once moved and seconded, a motion belongs to the assembly, at this point someone would have been in order in objecting to the withdrawal. At which time the motion to withdraw the motion could be voted on, or a motion to postpone could have been made.

So we are left with a semantic argument that I don’t think gets us far. So I go back to the priciples I described before: majority rule with minority rights, no surprises, don’t manipulate absences. Right now my thinking is going into how to have a process or action that affirms those principles.

“I meant what I said and I said what I meant.”

It is important that process statements are made clearly and unambiguously. If the Mayor said “withdraw”, that’s what should be understood.

If withdrawn – it was not acted on in that meeting, thus the Council was back to square zero on the second time the subject of the appointment was raised.

Similarly, I think that the only rational understanding of Hieftje’s explicit statement – that he was withdrawing the nomination – was that he engaged in a performative speech act to undo the previous act of nomination. He need not have said that, if what he wanted to do was to avoid a vote. He could have suggested that Taylor ask for permission from the council to withdraw his motion to confirm McWilliams. The council could have assented. And that would have been that. Instead, Hieftje undid his nomination in the same manner in which it was initially placed before the council – through a performative speech act. And that was accurately recorded in the public record – with McWilliams’ name struck through, and the notation that the appointment had been taken off the table.

I think it’s important to understand the distinction between (1) knowing that Hieftje was likely to try again to get the council’s confirmation of McWilliams to the board and (2) having McWilliams’ nomination procedurally in front of the council.

Chuck, if you have an argument that the McWilliams nomination was still in front of the council at the end of the Sept. 3 meeting, after Hieftje stated that he was withdrawing it, then I’m interested in hearing that argument.

As far as the fair play principle of not using an absence to defeat a controversial proposal, I think what we saw unfold on Sept. 3 was an application of that principle. It was Hieftje’s choice to ask for a vote on McWilliams, even though he knew full well that Lumm and Higgins were absent. Even though councilmembers who opposed the nomination could have forced a vote on the motion that was in front of the council – they did not insist on a vote. Arguably part of the reason that there was no objection is that Hieftje stated that he wanted to be allowed to withdraw the nomination.

By violating the basic collegial rule of “no surprises” – perhaps because Hieftje did not have 100% confidence that he’d have six affirmative votes in attendance at any of the three remaining council meetings – Hieftje hoisted himself by his own petard, because in this case a “surprise” carries with it, by council rule, a requirement of 8 votes.

Let’s step back: there’s procedure and principle here. As far as procedure, I don’t see a violation. Rule 6 says nothing about motions. It just establishes that it takes 8 votes to confirm a nomination if that’s the first meeting at which Council sees it. When council received notification of a nomination, there is no motion, it is just entered into the record. The actionable motion takes place at a subsequent meeting. By my reading of Rule 6, at any meeting after notice of nomination, a motion to approve that nomination requires the standard 6-vote majority (presumably this would be interpreted to apply to any meeting within the same legislative session).

That’s my read on the procedural letter of the law, then there are the principles at hand. I think there are several:

The core parliamentary principle is to have a process by which the rights of the minority are protected while enacting the will of the majority. This principle applies to the members of the deliberating body, and Dave argues above that this principle does not appear to be violated. Both members of the majority and minority had researched the candidate and were able to come to the meeting prepared.

There is another principle at play here: no surprises. Let me note, this is a principle of collegiality, not a parliamentary principle. Parliamentary process allows for all sorts of surprises. As an example, a resolution can be introduced from the floor and voted on that night without triggering the eight-vote rule.

Council did that a few weeks ago when a settlement agreement was added to the agenda and voted on at the very end of the meeting. I had not seen the text prior to the meeting, the public was not aware of it. It was clearly a surprise, but not one that would have required 8 votes to pass.

That said, “no surprises” is still a good operational guideline for both the members of the assembly and for the public, especially for controversial items. The settlement above was not controversial, the McWilliams is, and there is a case to be made that the late addition of the McWilliams nomination to the agenda. Again, that he was nominated was not a surprise to me or to the many Council members who took the effort to contact him and research his appointment, but the timing was a surprise.

Finally, I do think there is another fair play principle that should be brought up: not using absences to defeat a controversial proposal. When the DDA amendment was brought up in April, Sumi had to leave the meeting early (as in, before 3am). I think it would have been inappropriate to use her absence to push for a vote that night and defeat the resolution. Again, parliamentary procedure allows it, just as I believe it allowed the vote on Monday, but I don’t think it helps group process.