The Ann Arbor city council’s vote last Monday on the appointment of Al McWilliams to the board of the Ann Arbor Downtown Development Authority was 6-5 on the 11-member body. A 6-5 vote for the Ann Arbor council is rare, and reflects a certain amount of controversy surrounding McWilliams’ appointment.
But in this column I’d like to leave aside the controversies that led to such a narrow split. Instead, I’d like to review the history of the legislative actions that led up to the 6-5 vote at the council’s Sept. 16, 2013 meeting. That review leads me to conclude that eight votes should have been required for approval.
A quick narrative summary goes like this: McWilliams was set to be nominated, then not actually nominated, but then nominated after all, then had his nomination “withdrawn,” and then finally had his nomination voted on by the council. But in the end, the six-vote majority was declared enough to confirm his membership on the DDA board, replacing Newcombe Clark, who made an employment-related move to Chicago after serving one four-year term.
Choice of the phrase “was declared enough to confirm” is not accidental. Even though the tally of six votes was deemed sufficient by the city clerk and mayor John Hieftje for approval of the motion, I think the vote actually required eight votes to pass.
Under the council’s rules, a nomination to a board or commission can’t be confirmed or approved before the next regular meeting of the council – unless eight members of the council vote for the confirmation. So the typical pattern is that a nomination is put forward at one meeting and the vote on confirmation is taken at the next regular meeting.
Hieftje explicitly stated at the council’s Sept. 3 meeting – during deliberations – that he was withdrawing the nomination of McWilliams. The matter was not “postponed” – as Hieftje described it at the Sept. 16 meeting – because the council did not vote on the McWilliams nomination at all, much less vote in a way that postponed consideration. It certainly would have been an option for the council to have entertained a motion to postpone. But councilmembers did not wind up voting on it at all, and Hieftje stated: “Okay, so I will withdraw it [McWilliams' nomination] tonight.”
Under any rational understanding of the nomination and confirmation procedure, Hieftje needed to take some affirmative action to put the nomination before the council again, which could have been done at the Sept. 16 meeting. Early in that meeting, during communications time, Hieftje indicated to the council he’d be bringing McWilliams’ nomination forward toward the end of the meeting, when nominations and confirmations are handled. The nomination was not on the council’s agenda as of 4 p.m. that day and came as a surprise to some councilmembers.
But instead of just placing the nomination of McWilliams before the council, Hieftje also asked the council on Sept. 16 to vote on confirmation, which it did – with the 6-5 outcome.
It’s puzzling that the online Legistar file for Sept. 16 containing the McWilliams nomination states that the nomination was “placed on the table for [the council's] consideration at the Sept. 3, 2013 Regular Session.” Reviewing my own notes, The Chronicle’s reporting and the CTN video, I can’t discern anything that happened at the Sept. 3 council meeting that could reasonably be described as placing McWilliams’ nomination on the table for consideration. Certainly councilmembers were asked to vote on Sept. 3 on a nomination that had been put before them on Aug. 19. But at the Sept. 3 meeting, the nomination was withdrawn by Hieftje for consideration by the council. And the Legistar record from Sept. 3 accurately reflects that: “Appointment taken off the table on 9/3/13.”
It’s certainly contemplated by the council’s rules that a nomination and confirmation vote can take place at the same meeting. So asking for the vote on Sept. 16 did not violate the council’s rules. It’s just that the 6-5 outcome on that vote should have been judged as not confirming the appointment of Al McWilliams to the DDA board – because it needed eight votes.
The problem here is not just a technical one. What’s the rationale for a higher voting threshold when a confirmation vote comes at the same meeting as the nomination? Granted, I think part of the rationale is to ensure enough time for an adequate review and vetting of a candidate – which arguably took place in the case of McWilliams’ nomination. But part of the rationale is not peculiar to appointments to boards and commissions. At least part of that general parliamentary principle is this: A higher standard is imposed when less notification has been given to the members of the council (and to the public).
When Hieftje withdrew McWilliams’ nomination at the Sept. 3 meeting, I think councilmembers and the public could have had a reasonable expectation that they’d be notified of an upcoming vote on his confirmation at least one meeting before a confirmation vote was taken. Absent that notification, the threshold for a successful vote should rise – to eight.
In this column, I’ll lay out some of the documentation in the online Legistar files that makes clear that the Sept. 16 nomination really was considered a new, fresh nomination that should have required either an eight-vote majority or a delay on voting until the following meeting.
I also have a suggestion for a remedy that does not involve Miley Cyrus.
In the city’s online Legistar system for management of meeting agendas, mayoral nominations and their associated confirmation votes – which are typically taken at a subsequent meeting – are handled with the same file. That’s accomplished by using the “version” feature of files. For example, a file gets set up with a number in the format 13-xyzw. In Version 1, the nominations are listed out, usually with some text at the top like, “I would like to recommend the following nominations for your consideration.”
On the subsequent meeting agenda when the vote is taken, the same 13-xyzw file is used, but the version is updated so that in Version 2 we see the same list of people with something like “I would like to request confirmation of the following appointments that were placed on the floor for your consideration at the [date] regular session.” Legistar lets a user toggle easily between versions of the same file, so it’s easy to see the history.
Typically it’s easy to establish a connection in Legistar between a nomination and the subsequent confirmation – because it’s the same file number with a different “version.” Sometimes a name appears in the nomination version of a file, but does not appear in the confirmation version. Or sometimes the name appears in the nomination version of a file, but the name is simply not read aloud by the mayor at the meeting.
Timeline for McWilliams Nomination
With that background, here’s how the nomination of McWilliams unfolded:
- 08.08.2013 Legistar 13-0959 version 1 McWilliams’ name was not put forward verbally at the meeting. The address listed in that file is the same as his company Quack!Media, 320 S. Main St.
- 08.19.2013 Legistar 13-1001 version 1 McWilliams’ name was put forward verbally at the meeting. The address listed in that file is 551 S. Fourth Ave., and his Facebook page includes one entry describing a move.
- 09.03.2013 Legistar 13-1001 version 3 A vote was requested by mayor John Hieftje on three nominations as a group – two besides that of McWilliams. The question was moved by Christopher Taylor (Ward 3) and seconded by Sabra Briere (Ward 1). Mid-deliberation, the confirmation votes were separated out. And later during deliberations just on McWilliams’ appointment, Hieftje asked that he be able to withdraw the nomination:
If it is friendly I would ask the mover and the seconder to allow me to withdraw this nomination tonight to explore some of these issues and come back with answers. But. Is that friendly? Okay, so I will withdraw it tonight.
The parliamentary step to achieve that outcome was not implemented in strict fashion – something Chuck Warpehoski (Ward 5) pointed out to me in a phone interview. Once a question has been moved and seconded and put before the council, then the question belongs to the council, not the mover and the seconder. It’s an option for the mover of the motion to request permission to withdraw it – but can do so only with the permission of the council.
One proper approach would have been for Taylor to have asked permission to withdraw his motion to consider the question of McWilliams’ confirmation, and for Hieftje, after checking that there was no objection by the council, to have declared that motion withdrawn. If Hieftje had said nothing else, that would have left McWilliams’ nomination in place before the council.
But that’s not the way events unfolded. The problem with the way events actually unfolded was not the failure to conform with strict parliamentary procedure. The rights of the majority and the minority on the council weren’t interfered with as near as I can tell, and the will of the council was that they were content not to vote on the nomination that night. The problem is that the casual mechanism used to effectuate the will of the council gave rise to possibly different expectations for the future status of the nomination.
Warpehoski, for example, told me that based on Hieftje’s Sept. 3 indications about the nomination, he expected that he’d be asked to vote on McWilliams at a future meeting, likely the next one on Sept. 16. Further, he had processed Hieftje’s remarks as meaning that when the question came back, it would be on the same nomination that had been previously made. When the item did not appear on the agenda by the day of the Sept. 16 meeting, however, he did not think the council would be asked to vote on the question that night. So Warpehoski allowed that he was surprised when Hieftje announced at the Sept. 16 meeting that he was bringing back the nomination of McWilliams.
For my part, Hieftje’s choice to state that he was withdrawing the nomination meant that if McWilliams’ name were to come forward again, then it would be as a fresh nomination – distinct from the one placed before the council on Aug. 19, because that one had been withdrawn. I think the withdrawal of the nomination on Sept. 3 as noted in the Legistar file is accurately described – with a strikethrough of McWilliams’ name and the notation: “Appointment taken off the table on 9/3/13″
- 09.16.2013 Legistar File 13-1139 version 1 Early in the meeting Hieftje states (incorrectly) that [emphasis added]:
I would note one thing that I didn’t see on the agenda that uh, the nomination of Al McWilliams was postponed and I will be bringing that forward when it comes time for the mayor’s communications.
When the meeting reaches that point, Hieftje says:
And I would also like to request confirmation of the following nomination that was placed on the table for your consideration, and then it was uh, two meetings ago, and then it was um withdrawn so that we could do some exploration on some issues that were brought up. And that is the nomination of Al McWilliams to the Downtown Development Authority.
The Legistar file states (erroneously) that [emphasis added] “I would like to request confirmation of the following nomination that was placed on the table for your consideration at the September 3, 2013 Regular Session.”
What’s key here technically, I think, is the fact that a new file (13-1139) on McWilliams was established for the Sept. 16 meeting. That disconnects the council’s consideration on Sept. 16 of his appointment from the previous nomination on Aug. 19 – for which a different Legistar file was used (13-1001).
Given the oral descriptions at the meetings (that the nomination had been withdrawn), and the legislative documentation in Legistar, I don’t think it’s possible to maintain rationally that any nomination of McWilliams prior to Sept. 16 was still technically or procedurally in front of the council.
Because Hieftje, in practical effect, nominated McWilliams on Sept. 16 and asked for a confirmation vote at the same meeting, the tally should have been required to be eight votes for approval. The council rule is as follows:
RULE 6 – Nominations or Appointments to Boards, Commissions or Committees Nominations or appointments to boards, commissions, or committees, which require the confirmation or approval of Council, shall not be confirmed or approved before the next regular meeting of the Council except with the consent of 8 of the members of the Council.
So the problem is not that the vote was taken on Sept. 16. The problem is that the outcome of the vote was analyzed incorrectly as approving the appointment.
How to Fix It
It would have been ideal if the ruling – that the 6-5 vote was sufficient for the McWilliams appointment – had immediately been challenged at the Sept. 16 meeting. But no councilmember objected at the time. And frankly, that has to count in favor of the idea that the minority didn’t perceive that its rights were being violated at the time.
But I don’t think that insisting on strict application of the eight-vote standard is a case of over-enthusiastic following of rules just to make a technical point. That is, this is not the kind of situation Henry Robert meant when he wrote:
It is usually a mistake to insist upon technical points, so long as no one is being defrauded of his rights and the will of the majority is being carried out. The rules and customs are designed to help and not to hinder business.
One natural upcoming occasion to address the point might be the approval of the Sept. 16 meeting minutes, which will be handled at the Oct. 7 council meeting. The result of the vote on the Al McWilliams confirmation is part of the minutes, and it’s the result that was judged incorrectly.
Stephen Kunselman (Ward 3) has indicated to the city clerk that he plans to vote no on the approval of the minutes for that reason. City attorney Stephen Postema is currently reviewing the matter.
But the minutes of the meeting are supposed to be an accurate reflection of what happened at the meeting. And what happened at the meeting was that the nomination was declared approved. So it would do a certain violence to the historical record if that were simply changed. Still, it might be worth considering an annotation to the minutes to the effect that the result was judged incorrectly and that the minutes as adopted by the council reflect a failed motion to confirm the McWilliams nomination.
That approach would not prevent Hieftje from putting forward a fresh nomination of McWilliams on Oct. 7. The council could then vote 6-5 (or even by some different tally) on Oct. 21 to put Al McWilliams on the DDA board, or not. That is, there’s still plenty of time before the new post-election composition of the council is installed to put McWilliams on the board – in a way that comports with the council’s own rules.
In sum, there’s still an opportunity to establish a clean, accurate, uncontroversial legislative record, which would attest that the procedure for putting McWilliams on the DDA board didn’t violate the city council’s own rules.
Updated Sept. 19, 2013.
Earlier I’d inquired on this topic with professional parliamentarian Coco Siewart, who provides consulting services to municipalities as well as the Michigan Municipal League on issues of procedure. She appeared before the Ann Arbor city council earlier this year during a work session to give advice on rules, speaking time limits and working collegially as a group.
I did not ask Siewart to weigh in on the question of whether of an 8-vote majority was required in the case of the McWilliams confirmation vote. I inquired with her as to the options that were available, on the assumption that an 8-vote majority was required and that the result had been misstated. Here’s the query about a hypothetical:
Question: A vote is taken that needs an 8-vote super-majority (on an 11-member body) to pass under the council’s internal rules. The presiding officer of the meeting asks for a roll call vote. The outcome of that roll call is uncontroversially 6-5. The presiding officer declares the motion passed. No one objects (because no one realizes that the 8-vote majority is required.) What options are available after that meeting is over? Someone on the prevailing side could bring the vote back for reconsideration. But are there any options available to someone on the losing side? Are there any options available to the presiding officer?
So in Siewart’s response, which arrived today, she’s commenting only on the options available under a scenario when the result of the vote was incorrectly stated at a meeting. She’s not commenting on the question of whether the eight-vote requirement applied to the Sept. 16 Ann Arbor city council vote. Here’s Siewart:
… it appears that in this instance, the vote is not in question but the chair’s statement of the outcome. If action was not taken in response to the motion, the issue could be placed on the agenda for the next meeting and the chair could explain that the result of the vote was incorrectly stated and he/she should have stated the motion lost. If action was taken as a result of the motion, the Council should decide if it is an action that could/should be halted.
(Another note: The word super majority is an invention of the media. A vote is by majority or by 2/3 or by 3/4 etc.)
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