Rhino's Ramblings - Unclear Votes
72(1) A member of council has one vote each time a vote is held at a council meeting at which the member is present.
(2) A member of council attending a council meeting shall vote at the meeting on a matter before council unless the member is required to abstain from voting pursuant to this or any other Act.
(3) If a member is not required to abstain from voting on a matter before council and abstains from voting, the member is deemed to have voted in the negative.
(4) The clerk shall ensure that each abstention is recorded in the minutes of the meeting.
The Cities Act, SS 2002, c C-11.1
By Robert Thomas Opinion/Commentary
At their regular meeting on February 13th Council voted on three bylaws key to advancing the proposed joint use school on South Hill.
The bylaws voted on were:
Bylaw 5680 - Street and Lane Closure Bylaw
Bylaw 5681 - Exchange of Dedicated Lands Bylaw
Bylaw 5682 - Zoning Bylaw Amendent
According to published news articles the votes on the three bylaws failed to pass simply because there was no majority on each Bylaws Third Reading.
Under the Cities Act for a Bylaw to pass at a single meeting the vote must be unanimous.
And in the case of the Third Reading the votes were not unanimous.
That much I can agree with.
But what if I told you there should have not been a Second or a Third Reading of all three bylaws to begin with.
Would you believe me?
Well allow me to explain.
I was not in attendance at the February 13th Council meeting as I was covering high school basketball.
My strategy was to cover the Junior Varsity boys basketball game and then pick up the story by watching the feed later off of the City of Moose Jaw's web-site.
The only way I can cover two important things at the same time.
As I reviewed the tape I saw something there. Something the media, council members and yes Administration did not see or at least they said nothing about it.
Now here is the tape from the First Reading of Bylaw 5680.
Take a very close look at it.
Did you notice something?
I did.
Mayor Clive Tolley failed to vote.
Take a very close look.
Councillor Kim Robinson was opposed and Councillor Dawn Luhning did not vote.
But take a look at Mayor Clive Tolley. Go back and look at the clip.
Notice something?
His hand did not go up. He didn’t vote. He for all intensive purposes abstained.
Now here is why this is important the vote on the First Reading of Bylaw 5680 with how Councillors Robinson and Luhning voted would have meant with Mayor Tolley not voting would mean a tie vote of 3 - 3.
Bylaw 5680 should have been defeated on its First Reading.
But OK let’s give the whole issue a pass as a one off.
Well Mayor Tolley did the same thing on the Second Reading of Bylaw 5680.
Now here is the thing under the Cities Act the votes of the First and Second Readings should be 3 - 3 and defeated.
Mayor Clive Tolley's failure to vote on the first two readings of Bylaw should have stopped the next subsequent reading.
In what I see and my opinion under the spirit of the Cities Act and the City's Procedural Bylaw this bylaw should have been declared defeated and never made it to third Reading.
If you take a look at the Third Reading of Bylaw 5680 the Mayor clearly voted in favour of it.
It can be argued in my view Mayor Tolley is aware he is required to vote when the question is called “all those in favour.”
So OK let’s stretch the laws past the breaking point.
Let’s allow it.
But now let’s go to the Second Reading of Bylaw 5681. And take a very close look at the tape.
Did you see it?
Did you see Mayor Clive Tolley vote on the Second Reading of Bylaw 5681?
I didn’t.
Now take a really close look at the Third Reading of Bylaw 5681.
Can you honestly say the Mayor voted clearly for those in favour?
Or did he abstain and didn’t vote?
I personally see the latter.
If you want to argue the point go back to the Third Reading of Bylaw 5680 where he clearly voted in favour.
In my opinion it can be argued Mayor Tolley is aware he needs to vote on Third Reading and didn’t.
Remember the Cities Act - the only Act that governs voting at municipal Council meetings - throw Robert’s Rules Of Order out the door.
The Cities Act Section 72 states “…A member of council attending a council meeting shall vote at the meeting on a matter before council …” and any abstention is seen as a negative vote.
I will refresh your memory below.
72 (3) If a member is not required to abstain from voting on a matter before council and abstains from voting, the member is deemed to have voted in the negative. Cities Act of Saskatchewan
So Mayor Tolley not clearly voting can be seen as an abstention and a negative or no vote.
The vote is tied 3 - 3 and the Bylaw fails at Second Reading.
Now let’s move onto Bylaw 5682 - the re-zoning bylaw.
Take a look at the video of the First Reading of Bylaw 5682.
Take a close look as who does and does not clearly vote.
Did you see Mayor Clive Tolley vote?
I didn’t.
The 3 - 3 vote - by the Mayor not voting or abstaining - should have ended.
But let’s take a look at the video for the Second Reading of Bylaw 5682.
Did you see the Mayor clearly vote in favour there when the question was called?
I personally did not.
Once again in my opinion this is a bylaw that should have died because the vote was tied.
I know there are those who are going to say the Mayor only votes and is allowed to break a tie.
That is Robrts’s Rules Of Order a d does not apply to an urban municipality.
City Of Moose Jaw's Response
To prepare this opinion\commentary I emailed the City of Moose Jaw asking for comment.
Here is the City's Response:
“I received your message re: the vote on the Bylaws Monday night. I checked with our City Clerk to confirm and here is our answer:
Pursuant to Robert’s Rules of Order and Bourinot’s Rules of Order there are different methods of voting:
Voice
The Chair can ask those in favour to say “aye” or “nay” and declaring the motion either carried or lost.
Show of Hands
The more common method of voting is by a show of hands as the Chair can clearly identify who is voting in favour and who is opposed to a motion.
Regardless of the procedure used, any vote must be, carried out with absolute fairness and to have an unequivocal result. Unless the rules state otherwise, the Chair (Mayor) has the same voting rights as any other member. The Mayor does not need to show his hand but upon casting his tie-breaking vote determines if the motion is passed or lost. To clarify, the rules do not state whether all members must all show hands or all declare their vote by voice. It can be a combination.
Further, the rules are also clear on the clarity of the vote. For example, a member may call “division” if they believe that there was not a clear majority. In addition, a member may ask that the vote be counted. The Chair then retakes the vote in the same way but counts the votes for and against the motion. It was clear to Council that the majority of vote were in favour of the motions.
The City’s Procedure Bylaw also address Bylaws.
The introduction and first reading of a Bylaw are not subject to debate or be amended. A motion to give second reading is subject to debate but cannot be amended. In Committee of the Whole the bylaw can be debated, amended or tabled. A motion to give third reading may be debated but is not subjected to amendment.
Let me know if you have any other questions.”
And I asked a rebuttal question:
“But in Saskatchewan City Council's operate off of the Cities Act.
There is No tie breaking vote
Council members can abstain and it is shown as a negative vote.
The City responded:
“Correct – there is no tie-breaking vote, but in this case there were only 2 negative votes out of the 6 members present (two abstentions) – the Mayor was for the motions and they were carried 4-2.”
Synopsis
I will leave it up to the reader to decide if they believe the votes on the preliminary readings on the three bylaws were done properly.
If they are clear or not.
But in my opinion it raises more questions and concerns on an issue that needs to be straightforward and above board.
At the February 13th meeting two Council members out of six spoke out against the location of the joint use school.
That’s 33 percent - a fairly large amount.
With Councillor Dawn Luhning calling for further consultation.
A call that has been ignored.
With the proposed joint use school a project lasting well over 50 years it’s a project that needs to be seen as above board and then some.
In my opinion the votes and rulings at the February 13th Council meeting fail to achieve that.