A second opinion comes in more forms than medical advice, in this case it’s city government related.
A couple of Branson aldermen requested a second opinion whether Mayor Edd Akers has the authority to recast an “abstain” vote as a “no”vote. At the Nov. 26, 2019 meeting, Akers made the following proclamation: “Under my authority to preserve order and decorum for these meetings, that any abstentions by any member of this board during the meeting, or meetings in the future, will be recast as a ‘no’ vote.” It followed several instances in which some aldermen abstained, apparently to avoid a tie vote that could then be decided by a tie-breaking vote from the mayor.
This proclamation led to visible tension among the aldermen, which ultimately led to the request for a second legal opinion.
James E. Meadows, Kutak Rock LLP, provided the requested second opinion.
However, before Meadows presented his findings, Alderman Kevin McConnell had his own information to share.
“The only comment I will make generally speaking about this issue, and again we’ve all done a fair amount of research,” said McConnell. “I also received a second opinion. I would just caution that the second opinion that I received from someone with a lot more, with all due respect, a lot more municipal experience than we have in staff, said clearly under 2.80, and it’s under Robert’s Rules of Order, that you cannot change an abstention to a ‘no.’ That abstention is just that, an abstention. So, I’ll leave it at that. I’m not an attorney, that’s what the second opinion that I received said.”
McConnell did not state who provided his second opinion. He did not respond to an email or a phone call from the Branson Tri-Lakes News for clarification. Meadows’ opinion was provided to the aldermen in a letter.
“We have examined, at your request, the issue of strategic abstentions from voting by members of the Board of Aldermen,” said Meadows. “These abstentions occur without conflict of interest present and are presumably made strategically to prevent a tie vote from occurring, which the Mayor can then break by voting.
“The Mayor does have the authority to recast strategic abstentions as “no” votes. A tie vote thereby be created that the Mayor can then break. Additionally, any aldermen abstaining from voting creates potential grounds for their removal from the board for neglect of official duty.”
Meadows then explained to the board how he came to that opinion.
“In this case, there was no underlying ordinance in question that was provided to us. I did have access to the city of Branson ordinances as we went through this, and I think Alderman McConnell points out what I think is one of the important ordinances here, and that’s ordinance 2.80. That makes Robert’s Rules of Order your presiding governing procedure in handling your meetings. … That being said, we need to look at the larger context here,” said Meadows.
“Missouri adopted common law when it became a state. Under common law, abstentions were always traditionally treated as votes in the affirmative. That had been the common law rule for hundreds of years. In 1978, the Missouri Court of Appeals ruled that, that did not stand for municipal governments. And their reasoning is important here. They said that a specific statute sets the number of votes that has to be achieved to reach a passage of an ordinance, in this case four. So the Court of Appeals ruled that because there is a certain number of ‘yes’ votes that are needed for a passage, you could not treat abstentions as a ‘yes.’
“Now, unfortunate for us, the Court of Appeals did not grace us with answering the rest of the question, if we can’t treat abstentions as ‘yes,’ what do we do with it? They were silent on that in the opinion.
Later case law, including a 1985 case, did not add any details to it. So what we’re left is, we have to figure it out by reference to Robert’s Rules of Order and to how other states have approached this issue.
“Now, most states have dealt with it affirmatively by statute, Missouri has not. That is one of the detriments we have here is the legislature has not graced us with direct understanding. When we turn to Robert’s Rules of Order, it does not say that in most cases the Mayor can treat an abstention as a ‘no’ vote. What it actually says is there’s certain cases when you can, and it goes through a list of exceptions. Well, here’s the problem, it doesn’t fit either way in this scenario.
“So that turns us to the law of other states. And other states have ruled, two of them at least, and there’s been some others that we’ve been able to find at a lower court level, that abstentions may be treated as a ‘no’ vote because of the reason of what they do. They are a vote against the passage of the ordinance when four votes are required. When an affirmative vote is required, an abstention has the same effect as a ‘no’ and may be treated as a ‘no.’”
Meadows then cited an example.
“In that case, a sheriff was appointed by a municipal corporation. That municipal corporation had three votes to employ the sheriff, two votes against and an abstention. In that case, the abstention was treated as a ‘no’ vote and the presiding officer, the mayor, was able to cast the tie-breaker. That is the most analogous case to the situation we have here.
“So, it is very likely that the mayor does have the authority to either treat an abstention as a ‘no’ vote or to recast it as a ‘no’ vote. The other option, frankly’ is that the Missouri Court of Appeals, if faced with this situation’ might reconsider its 1978 opinion and treat the abstentions as ‘yes.’ Under either case, the abstention is not treated as something separate, but is treated as either a ‘no’ or ‘yes’. In this case, I do think there is a good argument and good law supporting the idea that the mayor can either recast those as no’s or treat them as no’s to break the tie.”
Meadows then discussed the duty of elected aldermen.
“Now the additional question we ran into, and frankly, I was hesitant to bring it up, but I think you all need to be aware of it,” said Meadows. “There is case law suggesting under Missouri law an affirmative duty for members of the governing board to vote. It is the duty of those governing members to cast their vote unless there is some valid reason.
“There is case law in Missouri that if you fail to exercise your duty as an elected public official, that, that individual can be removed from office. Now of course, nothing defines by how often that has to occur, but it is treated the same as missing a series of meetings.”
The next Branson Board of Aldermen meeting is scheduled for Jan. 28.