By Richard Knee
July 7, 2012
Does a vacancy on a policy or advisory body count as a “member” for purposes of defining a quorum and a majority vote?
And does an absentee count as a “member” for purposes of defining a majority vote on substantive matters?
The city Charter is silent on those questions. So are, as nearly as I can tell, the state’s open-meeting law (the Ralph M. Brown Act) and the most commonly used guide to parliamentary procedure (Robert’s Rules of Order).
And those omissions are at the heart of a debate over whether the city’s Sunshine Ordinance Task Force violated the Charter when, on April 26, 2011, it revised its bylaws to declare that passage of a substantive motion required a majority of those present rather than a majority of all 11 voting seats.
The conventional thinking is that all voting seats must be counted in defining a quorum and in establishing the number of votes needed to pass a substantive motion.
And that is the rule that the state Senate and Assembly – and who knows how many other legislative bodies – use. In the 40-seat Senate, a simple majority is always 21, a two-thirds majority is always 27 and a three-fourths majority is always 30. In the 80-seat Assembly, the counterpart thresholds are always 41, 54 and 60.
This means that a vacancy or an absentee is an automatic “no” vote on a substantive motion.
Also at issue is whether the Charter’s jurisdiction includes the task force; differences between the two sub-paragraphs of the governing section, 4.104, prompt the question.
The Charter should be amended to provide definitive answers, to the benefit of all city policy and advisory bodies.
Section 4.104(b) should be revised to make clear whether a vacancy counts as a “member” for the purpose of defining a quorum and a majority vote, and whether an absentee counts as a “member” for the purpose of defining a majority vote.
The paragraph states only, “The presence of a majority of the members of an appointive board, commission or other unit of government shall constitute a quorum for the transaction of business by such body. … Unless otherwise required by this Charter, the affirmative vote of a majority of the members shall be required for the approval of any matter, except that the rules and regulations of the body may provide that, with respect to matters of procedure the body may act by the affirmative vote of a majority of the members present … ”
In revising its bylaws, the task force did not change the quorum threshold; it remains at the majority of total voting seats, i.e. six out of 11. Perhaps the definition should be revisited, for the Charter and for bodies’ bylaws. After all, a vacancy increases the difficulty of mustering and maintaining a quorum, which can be significant for all-volunteer bodies whose members must juggle meeting schedules with family life and/or work obligations.
The issue is real-time for the task force; normally, six absences kill a quorum but with two voting seats vacant, that threshold is now at four.
Regarding whether Charter Section 4.104, “Boards and commissions – rules and regulations,” applies to the task force, language differences between sub-paragraphs (a) and (b) cloud the issue in many observers’ view, and this can be easily remedied.
Sub-paragraph (a) states, “Unless otherwise provided in this Charter, each appointive board, commission or other unit of the executive branch of the City and County shall: (1) Adopt rules and regulations consistent with this Charter and ordinances of the City and County. …”
The task force is not part of the city’s executive branch. Subsection (b), meanwhile, does not include the phrase “of the executive branch.” So one could argue that sub-paragraph (b) applies to the task force and sub-paragraph (a) does not.
Most members of the task force, however, believed that “of the executive branch” refers to the entire section. So it is reasonable to conclude that they did not willfully violate the Charter when they changed the majority-vote bylaw.
To remove any doubt, the Charter could be amended by removal of the phrase “of the executive branch” from sub-paragraph (a) or by revision of the first sentence in sub-paragraph (b) to state, “The presence of a majority of the members of an appointive board, commission or other unit in the executive and legislative branches of government shall constitute a quorum for the transaction of business by such body.” Another option is to stipulate in both sub-paragraphs that the rules apply to all bodies in both branches.
The information packet prepared for the task force’s April 26, 2011, meeting included comments that this member had solicited from attorneys specializing in sunshine law. Their opinions varied. The task force’s voting-member attorney, David Snyder, reluctantly sided with the city attorney’s office. Outside attorneys Terry Francke and Peter Scheer saw no problem with the bylaw revision.
Knowing he would be absent from the meeting, Snyder posted this comment to the information packet: “As a policy matter and a personal preference, I dislike the ‘majority vote’ rule in the San Francisco City Charter as it has been applied by the Sunshine Ordinance Task Force. I think it can [lead] and has [led] to nonsensical results. However, I see nothing in the analyses I have read to suggest that [Deputy City Attorney Thomas] Owen’s analysis is incorrect as a matter of law. As much as I would personally like the rule to be different, I do not see a principled or credible way to avoid it.
“It is my view,” Snyder continued, “that (a) the (task force) is subject as a general matter to the provisions of the City Charter; (b) the (task force) is subject to Charter Section 4.104; and (c) the interpretation of 4.104 which the City Attorney has espoused is legally correct.”
Scheer, the executive director of the San Rafael-based First Amendment Coalition, saw the bylaw as a “policy choice.” The original language assured “a near-consensus for all substantive actions” while the revision, though allowing actions “to be taken by a minority of all members,” would make it “harder for a dissenting minority to block action (simply by not attending, like the Democrats in the Wisconsin legislature),” he said in response to a query from this task force member.
He added, “These choices are not addressed by the Brown Act. I’m not aware of other laws that might impose quorum/majority requirements.”
Francke, general counsel of Carmichael-based Californians Aware, agreed with Scheer. Francke drafted the initial language for the city’s original Sunshine Ordinance, which supervisors watered down and then passed in 1993.
“[T]here’s no legal bar to a procedural standard adopted to govern the decisional process of an essentially advisory body in municipal government,” Francke said. “It forecloses no one’s rights and, if proven unworkable or fraught with unseen problems, can always be tuned back to another rule.”
There are valid arguments on both sides of the bylaw change. What brought the issue forth were complaints from members of the public, including some who had lodged grievances with the task force, that the presence of nine or fewer voting members meant that a super-majority was needed for passage of any substantive motion. In fact, with a bare quorum present, passage required unanimity; a single member could kill a motion, and that could result in denial of justice.
The flip side: the bylaws change means that with only six or seven members present, as few as four of the task force’s 11 members may pass a substantive motion.
It appears likely that the task force will revisit the bylaw. If it happens, I expect that the revision passed 15 months ago will be further amended or overturned. But the possibility remains that another city body or bodies will repeat what the task force did on April 26, 2011.
The Charter should be amended to clarify, once and for all, whether such actions will pass legal muster.