Vancouver city staff memo on referral motions during Public Hearings, 10-June-2016

City Hall StatueIn democracy at the municipal level, the top two opportunities for citizens to directly get involved in decisions are (1) elections, which now occur every four years, in which voters elect their officials for City Council, and (2) public hearings, where elected officials on City Council are required by law to “hear” the public. We are therefore following this case closely.

Below is the text of a staff report to City Council, dated June 10, 2016, attempting to clear up issues relating to item #3 (3365 Commercial) of the Public Hearing on May 24. City Council voided that Public Hearing in a decision (May 31) to deal with the fallout of four councillors having walked out at it. A new date was set for June 23. This memorandum  “Public Hearing Procedures: Questions and Answers” is also piece of a bigger puzzle. CityHallWatch is looking at the qualifiers and adjectives here (some of which we have bolded), as this is the staff’s opinion, and another authority might possible may the opposite conclusion on the same issues. In some cases the statements are not absolute but involve opinion or judgement, which some may say is open to debate or challenge.

Office of the City Clerk

June 10, 2016


TO: Mayor and Council

Sadhu Johnston, City Manager
Paul Mochrie, Deputy City Manager
Janice MacKenzie, City Clerk
Lynda Graves, Manager, Administration Services, City Manager’s Office
Rena Kendall-Craden, Director, Communications
Kevin Quinlan, Deputy Chief of Staff, Mayor’s Office
Katie Robb, Director, Communications, Mayor’s Office
Emma Lee, Director, Community Relations, Mayor’s Office
Francie Connell, Director of Legal Services

FROM: Janice MacKenzie, City Clerk

SUBJECT: Public Hearing Procedures: Questions and Answers

At the May 24, 2016 Public Hearing, quorum was lost while Council was in Committee of the Whole. Following that meeting, staff reviewed the circumstances that arose at that Public Hearing. Given the procedural uncertainties that resulted from the loss of quorum at the Public Hearing while Council was in the Committee of the Whole, staff recommended that Council void the May 24th Public Hearing on the rezoning concerning 3365 Commercial Drive and 1695-1775 East 18th Avenue and re-refer application to a new Public Hearing. Council resolved to both void and re-refer that rezoning application at the Regular Council meeting on May 31, 2016.

At the May 31st Regular Council meeting, a number of Councillors raised questions concerning the May 24th Public Hearing as well as the procedures for conducting Public Hearings. Staff have prepared responses to the questions raised. The responses focus on clarifications to the application of current rules and procedures.

Q: What happened when quorum was lost at the end of the May 24th Public Hearing and what options were available to the Chair at the time that quorum was lost?

A: Council was in the Committee of the Whole, so the meeting was ended with the loss of quorum. According to Robert’s Rules Newly Revised, Eleventh Edition, if Committee of the Whole finds itself without a quorum, it can do nothing but rise and report to the Council, which can then proceed to fix the time to which to adjourn, adjourn, recess or take measures to obtain a quorum. This was the only option available to the chair at the time that quorum was lost. [CHW has received some comments that challenge this assertion.]  This is complicated by the fact that section 7.4 of the Procedure By-law requires an affirmative vote of 2/3 of the Council members present in the Committee of the Whole in order for the committee to rise and report and it is unclear whether this refers to 2/3 of the members still present after a loss of quorum, or the total number of members present when there was quorum. [CHW: Ambiguity in the bylaw leave room for interpretation.] When Council is convened as the Committee of the Whole, a Council member may not move to adjourn (Section 7.2(b) of the Procedure By-law).

Q: In what circumstances can there be a referral motion?

A: In the past, the Chair has ruled a motion to be out of order that sought to refer staff “to work with the developer in cooperation with the local community to resubmit a project that addresses the community’s issues with regard to height, density, permeability, iconic design, impacts on the bicycle lane, and treatment of Watson Street”. However, a motion to refer to a later date in July to receive further information from the City Arborist was not substantially similar to this motion. Basically, while it is permissible to seek further input from staff, it is not in order to simply refer the matter back for the applicant to work with staff to re-submit a project. [CHW: This explanation leave a large amount of ambiguity still regarding when referral motions are in order or out of order during a Public Hearing.]

Q: Noting that debate and discussion on the matter at the Public Hearing on May 24th had already begun, and that two Councillors had already declared how they were going to vote on the matter, if a new Public Hearing is ordered, and given that other Councillors were present in the Council Chamber who heard those two Councillors express their voting intentions, how would that be addressed in a new Public Hearing given the potential for it to bias and/or potentially influence other Councillors who were present in how they might vote in a new Public Hearing in the future?

A: Councillors are required to attend and consider the matter at the new Public Hearing with an open mind, free of bias, and may change their views from those previously held or expressed. The question of potential bias is a matter for each Councillor to consider for him or herself. If any Councillor believes that they are biased, they should recuse themselves. Any Councillor who has expressed a strong view could state at the start of the new Public Hearing that he or she will participate in the hearing with an open mind and will be capable of being persuaded.

Q: If a new Public Hearing was to be called, there were seven Councillors in attendance on May 24th and three Councillors and the Mayor who were not. What would the legal ramifications be for the seven Councillors who had already participated in the Public Hearing debate and discussion on May 24th who may now have a bias in the matter?

A: Councillors are required to attend and consider the matter at the new Public Hearing with an open mind, free of bias, and may change their views from those previously held or expressed. Councillors are presumed to act in good faith.

Q: If the three Councillors and the Mayor who were not present at the Public Hearing on May 24th were to attend a new Public Hearing, and the seven Councillors who were present were to be disqualified from a new Public Hearing, quorum would obviously not exist. How would this lack of quorum be addressed legally?

A: The seven Councillors who were present are not disqualified.

Q: If a Councillor makes a motion calling to extend a meeting in order to finish the business of the meeting, does the Chair have the power to deny that motion?

A: A motion to extend may be raised as a motion and not as a point of order. Under Section 5.2 of the Procedure By-law, a Councillor must not interrupt another Councillor except to raise a point of order, but there must be a proper point of order (e.g. breach of the rules of procedure), not a point of order to raise a motion. The Chair has the authority to rule on a point of order at his or her discretion and can find a motion out of order under Section 4. 3.

Q: What happens when quorum is lost for a brief period of time, either in a meeting or in Committee of the Whole?

A: According to Robert’s Rules, if the Chair notices that quorum is lost, business should not be conducted until quorum is restored. If quorum is lost while in Committee of the Whole all that the Committee can do is rise and report. This is why the Clerk is vigilant to ensure quorum is not inadvertently lost.

Q: At what point does the loss of quorum trigger a review of the tapes?

 A: This would only be required if any business was transacted at the time of loss of quorum. Under Robert’s Rules, quorum is presumed unless the chair or a member notices that a quorum is no longer present. At that time, a point of order can be raised. Robert’s Rules provides that such a point of order is generally not permitted to affect prior action. As such, there is no need to review tapes to determine if there was an unnoticed loss of quorum during a session, as long as quorum was regained before any business was transacted.

Q: Should Council proceed with a public hearing if there is quorum, but many Councillors are absent?

 A: Quorum is six (6), so the meeting could legally proceed, but Council may decide not to proceed with the public hearing on that date. Alternatively, Council could choose to make, but not adopt, the motion to go into Committee of the Whole under section 18.13(b) of the Procedure By-law.

Q: What sets precedent in terms of rulings of the Chair?

 A: Robert’s Rules provides that for future similar issues, past rulings are persuasive, but not binding. They also provide that if Council is or becomes dissatisfied with a precedent, it may be overruled, in whole or in part, by a later ruling of the chair or a decision of Council. This will create a new precedent.[CHW: It is worth looking very closely at the precedent created on May 24, with the chair permitting a referral motion. Also, the voiding of the Public Hearing, and starting from zero for June 23. All input to the May 24 Hearing is declared void. Citizens must go through the same effort if they wish to be part of the record.]

Q: Does the Procedure By-law address consequences to Councillors misusing the rules and procedures of Council?

 A: Section 4.5 of the Procedure By-Law empowers the Chair to expel from a meeting a Council member who refuses to come to order. Section 61 of Robert’s Rules deals with the principles governing discipline at a meeting.

Q: Where is it stated that a 2/3 majority is required to overrule a decision of the Chair?

A: This is set out in Section 166 of the Vancouver Charter which states: “the vote of not less than 2/3 of the members present shall be necessary to supersede a ruling of the presiding officer at a meeting of the Council, or to rescind a resolution passed by the Council in its current term”.

Q: Please clarify how to proceed if a meeting is declared adjourned due to loss of quorum?

A: If quorum is lost while Council is in the Committee of the Whole, all it can do is rise and report to the Council on all recommendations and motions considered by the Committee. Council can then proceed to fix a time to which to adjourn, adjourn, recess or take measures to obtain a quorum (Robert’s Rules, pages 347-348). The Committee of the Whole itself cannot take those actions. A further complication arises because the Procedure By-law requires an affirmative vote of 2/3 of the Council members present in the Committee of the Whole in order for the committee to rise and report. If this does not occur, then the meeting is effectively ended by the loss of quorum. If Council was not in the Committee of the Whole and there were a loss of quorum, Council could take those actions set out above (i.e. proceed to fix a time to which to adjourn, adjourn, recess or take measures to obtain a quorum).

Q: Was the Public Hearing actually legally adjourned given that there was no motion; no declaration of adjournment by the Chair?

Q: No, the meeting of the Committee of the Whole was ended by the loss of quorum and was not adjourned.

Q: Must the Chair pursue at least some of the 4 measures called for in Roberts Rules when there is an absence of a quorum (see Robert’s Rules, Section 40 (formerly 64)- Dealing with the Absence of Quorum).

A: While Council is in the Committee of the Whole, those options were not available to the Chair. If the Committee of the Whole had risen and reported to the Council, those actions could have been pursued by the Council.

Q: How can a subsidiary motion to refer an application back for further consultation be ruled out of order and a subsidiary motion to refer to staff to come back with a further detailed report in a month be ruled in order? Why are these different?

A: The difference concerns whether the motion is to refer back to staff for further information to be provided to Council, which would be in order, or to refer the matter to staff and the applicant to conduct further consultation and re-submit a new project, which would be out of order. This is out of order under section 4.3(c) of the Procedure By-law because it conflicts with or presents substantially the same question as a motion still within the control of Council because Council has not been finally disposed of it. If a Councillor believes that the consultation was insufficient, then he or she can vote against the main motion.

I hope this adequately addresses the questions you have raised.

Janice MacKenzie

City Clerk

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