Councilors thumb noses at voters, City Charter

Grand Junction City Councilor Jim Doody’s reaction to his colleagues Tuesday night — walking out in the midst of a tense meeting — may have been a bit theatrical, but…




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If Amy Hamilton’s reporting is correct – “Tense GJ council mulls vacancies” – our City Council acted illegally last night when it voted to “temporarily amend the city’s charter”.

Article VI, Section 50 of that Charter provides:

(a)  In legislative sessions, the council shall act by ordinance, resolution or motion.

(b)  The ayes and nays shall be taken upon the passage of all ordinances and resolutions, and entered upon the journal of its proceedings.  Upon the request of any member, the ayes and nays shall be taken and recorded upon any motion.  Every member when present must vote, and every ordinance passed by the city council shall require on final passage the affirmative vote of a majority of all members of the council.

(c)  No ordinance shall be passed finally on the date it is introduced, except in cases of special emergency, for the preservation of the public peace, health or safety, and then only by the unanimous vote of all members of the council.  No ordinance making a grant of any franchise or special privilege shall ever be passed as an emergency measure.

Presumably, a mere electoral impasse is not a “special emergency”.

Article IV, Section 36 states that “the council shall consist of seven members . . .” – such that a majority is four – as three council members apparently knew when they voted to “temporarily amend the city’s charter so that three votes, not four” were sufficient to decide to fill two vacancies by appointment rather than by election.

However, Article XVII, Section 151, makes no provision for “temporary amendments” and requires all amendments to comply with Article XX of the Colorado Constitution (which council members are sworn to uphold).

Article XX of the Colorado Constitution provides that the charter of a home rule municipality can only be amended “by petition and electoral vote”.

The only germane section of the Charter is Section 45 which says “a majority of all the members shall constitute a quorum to do business…”

Obviously a quorum existed when 5 members were present.  And it still existed when third grader Jim Doody stomped out of the room.

There have been many occasions when only 4 or 5 members were present and there was no problem with the smaller group making decisions.

The problem is that the council got terrible advice from John Shaver.  It was his idea to have them pass a motion calling for a temporary reinterpretation.  This is at least third time in 2013 that Shaver has provided bogus advice without first determining the underlying facts.

Dennis Simpson obviously shares the interpretation adopted by the three members of the City Council – but misses the point.

While “quorum” was not at issue Monday night, Article VI, Section 45 states in pertinent part:  “A majority of all the members shall constitute a quorum to do business, but a less number may adjourn.”

Note that the Charter does not state “a majority of members present” or a “a majority of all the members (excluding vacant seats)”, but rather “all the members”.

Because Article IV, Section 36 states: “the council shall consist of seven members . . .”, the identical language in Section 45 (as to quorum) and in Article VI, Section 50 (as to legislation) has long been interpreted as requiring four council members for both to establish a quorum and to pass legislative ordinances and resolutions.

Thus, even if Dennis Simpson is correct that: “There have been many occasions when only 4 or 5 members were present and there was no problem with the smaller group making decisions”, that fact proves the point.

Apparently, no one recalls any prior occasion when either a quorum was established and/or any formal action was taken with fewer than four members present and voting.

Thus, Jim Doody’s departure was never intended to deny the Council a quorum (since Bennett Boeschenstein stayed), but rather to protest the threesomes’ legislative action – adopted with only three votes in purported violation of Section 50(a) and (b) and of Article XVII, Section 161 – to “temporarily reinterpret” the phrase “a majority of all the members” to mean three rather than four votes.

Moreover, since formal legislative action is not the only “business” conducted at Council meetings, the quorum requirement under Section 45 could reasonably be considered more lenient than those for legislating ordinances and resolutions under Section 50.

Bill Hugenberg is the one missing the point. 

It was not the three councilors who came up with the ludicrous idea of temporarily amending the Charter.  It was John Shaver. 

The people who serve on the council are not lawyers—they are laypersons.  They specifically asked Shaver to explain their options.  He told them they would be in compliance if they approved the motion to amend the charter. 

This was terrible advice.

Throwing mud at Marty, Sam, and Phyllis is patently unfair. Is it any wonder that it is difficult to get quality candidates to run for office?

The main thrust of Hugenberg and Shaver’s argument is that “past practice” has required 4 votes to pass anything.  Neither have provided evidence to support this assertion.  The truth is that, in the vast majority of meetings, at least 6 members have been present. 

And even if one or two examples can be found where a meeting of five members decided they needed four votes to take action, this should not have caused Shaver to push the councilors in front of the buzz saw they are now facing.

Hugenberg seems to not understand the definition of the word “quorum”.  The Webster definition: The number of members or officers or members of a body that when duly assembled is legally competent to do business.”
In his convoluted way, Hugenberg appears to agree that a quorum existed on July 23.

What he seems to be missing is the part that says that once a quorum is established, the members present are legally competent to do business.

It is obvious that Hugenberg’s main problem is that he does not like the politics of the members in question and is throwing gasoline on a fire that John Shaver started.

There is nothing convoluted about this issue:

If “a majority of all the members of the council” means the same thing wherever used, and a majority of all seven members of the council equals four, then four members must be present for a quorum and four “Aye” votes are necessary to pass “legislation”.

If that phrase is read to mean “a majority of available members”, and only five seats are filled, then three is sufficient for a quorum and three (of five) “Aye” votes is sufficient for action.

Since the Charter can reasonably be read either way, it would be—as Shaver suggested—up to the Council to initially interpret is language, and for anyone arguably “injured” thereby to seek judicial redress.

Absent convincing evidence of past practice and/or controlling case law on point, a court would likely defer to the Council’s interpretation.

However, had the Council formally adopted a resolution to “amend” the Charter, that fact would have opened up another can of worms.

Apparently, the Sentinel’s reporting was somewhat inaccurate as to what actually transpired—and Shaver advised the Council that it was not bound by past interpretations of the relevant language and could exercise its own judgment—which it did.

We have made progess. 

Bill Hugenberg started out with “our City Council acted illegally last night”.  His latest position is “a court would likely defer to the Council’s interpretation”.

At the risk of beating a dead horse, I must restate that the Council made no interpretation.  The interpretation was made by John Shaver.

Apparently, Dennis Simpson feels obliged to dishonestly distort what I wrote.  As any reader can confirm, I stated that “If Amy Hamilton’s reporting is correct”, then “our City Council acted illegally . . . when it voted to ‘temporarily amend the city’s charter’”.  As it turns out, the reporting was incorrect—since the Council did not vote to “amend the city’s charter”, but only to “interpret” it.  Legally, that is a huge difference.

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