HomeMy WebLinkAboutA030 - Letter from City Attorney dated March 1, 2019 - Procedural issue on vote on Howell application CITY OF MEMO
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,- Amen Legal Department
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Item No. 16
To: Mayor& City Council
From: Mark O. Lambert, City Attorney
Date: March 1, 2019
Subject: Procedural issue re: vote on Howell application for Property Sale
Hardship Exception.
There was a procedural error in the handling of the vote on the Property Sale Hardship
Exception request by Robert Howell, which the Council considered at the last Council
meeting, on Tuesday, February 26, 2019.
First a vote to deny the application was made, which was defeated on a 3-3 vote.
Then a vote to approve the application was made. The Council vote was 3-3. Thinking
it was a Motion, and relying on incorrect advice from me in that regard, the Mayor
voted in favor, thereby breaking the tie.
The problem is, the vote should have been handled as a Resolution. The Mayor can
break a tie on a Motion, but has cannot cast a vote on a Resolution.
The Council needs to revisit this situation. The fact is that it should have been a
Resolution, which was consistent with how other such matters have been handled in the
past. The Council has always approved quasi-judicial matters by Resolution. A
Resolution would also result in a formal document from the City to the property owner,
which doesn't happen in the case of a motion (except for, perhaps, a copy of the
minutes).
A roll call vote was taken, which is the proper type of vote for a Resolution. A Motion
is typically a voice vote.
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I don't think it's as easy as just saying let's do a new vote. The vote took place, and I
think we have to acknowledge that. The vote was, in reality, a Resolution, and the vote
was taken by roll call, like we do with Resolutions. The solution to this procedural
problem is to recognize that a vote was taken, it was a Resolution, not a Motion, and
therefore the Mayor's vote doesn't count, which means it was a 3-3 vote, and the
Resolution to approve the exception failed.
My advice is that we acknowledge at the Tuesday, March 5, 2019 Council meeting that
the vote took place, and that as it stands now, the Howells' application for the exception
was not granted because of the tie (3-3) vote. If the Council feels that they should vote
again on the matter, a council member on the prevailing side (a"no"vote in this case)
can move to reconsider the vote. If the motion to reconsider passes, a new vote can be
taken on the application.
The Howells have been notified of the procedural issue with this vote, and are being
provided a copy of this memo.
In the future, we will take steps to identify in advance, on matters like this, whether the
action is a Resolution or Motion, and make sure that is noted in the Council Action
Form or on the Agenda.