All of you have been awesome! It is actually a great thing that there is no agreement between Joshua, Atul, and everyone else that chimed in right after! Each of you adds a piece to this puzzle. Thank you!
My thoughts come from being both a doctor and a lawyer (hence - pair-a-docs) - who has seen government licensing boards do screwy things — and they get away with it until — they don’t.
As for needlessly ambiguous words/phrases such as “the vote passed unanimously” — this English TV comedy sketch sums up why imprecise language is problematic. Sketch from BBC's "That Mitchell and Webb Look", S01E02 (2006) - Mitchell & Webb - Needlessly ambiguous terms - https://m.youtube.com/watch?v=U6cake3bwnY
Voice votes (e.g., “the ayes have it”) works if it it is obvious — and especially when a supermajority isn’t needed. If it is close, one of the members present, a member can call for division — and count the votes x number for; y number against.
If a statute requires a vote to be done one way, it can’t be done any other way. Some statutes require votes to be counted (e.g. 3 in favor; 1 against; 1 abstention); other statutes require actual roll call (Ken-aye; Atul-Aye; Joshua nay; Gary-abstain).
The rationale is not just to determine the vote result, but to allow the electorate to know what their representatives did — so the electorate can vote the bums out if they don’t like the job their representatives are doing.
As eloquently stated above, “Unanimous” doesn’t mean everyone voted, it merely means no one cast a vote in opposition. But the electorate that want to hold their representatives accountable — how can they do that when the rep/senator could say — “I abstained” or “I left the room before the vote” — to avoid responsibility for a tough vote.
There are also times to where a subset of a group is not permitted to take part in the discussion or vote. For example, in licensing boards for health professionals — Medical Doctor members of a probable cause panel will vote on disciplinary cases involving physicians, physician assistants, anesthesiology assistants, electologists, dietitians … — but a physician assistant member is prohibited by law from voting on cases other than other physician assistants. For the medical doctor (and his attorney) who catches irregularities — they can get a discipline order thrown out for violating state/federal guarantees for due process
But then again, without accurate (and precise) meeting minutes — it is a slim chance of getting a reviewing court to reverse a previous decision. But then again, reviewing courts sometimes reverse, if only temporarily — based upon procedural irregularities that violate city charters, state constitutions, etc. I’ll end this crazy long post with the following:
This first case below shows this concept in a “real world” example. The second one is an older case that explains the concept better [and if courageous—read the Judge Cooley case from Michigan - written in 1870):
B.M.Z. CORP. v. CITY OF OAKLAND PARK, 404 So.2d 133 (Fla. 4th DCA 1981).
PER CURIAM.
Appellant seeks review of an order denying its motion to temporarily enjoin appellee from enforcing certain ordinances. We reverse.
Appellant, in its motion for temporary injunction and at the hearing thereon, relied on the allegations of its sworn complaint. The thrust of the complaint and of the argument at the hearing was that appellant has operated a night club in the City of Oakland Park, and that the enactment of ordinances to roll back the closing hours of night clubs from 4 a.m. to 2 a.m. on six days of the week and to 3 a.m. on Sundays was invalid because the procedure required by Section 18 of the City of Oakland Park Charter had been violated.
Section 18 of the Charter provides, in pertinent part:
The affirmative vote of three (3) members shall be necessary to pass any ordinance on a reading, or adopt a resolution, and the passage of all ordinances and resolutions shall be taken by a Yes and No and entered upon the minutes.
Appellant incorporated by reference in and attached to his verified complaint what he swore to be certified copies of minutes of the meetings at which the ordinances were enacted. These minutes only recited that on roll call all had voted in favor of the ordinances.
We agree with appellant's argument that Nelson v. State, 83 So.2d 696(Fla. 1955) governs this case. In Nelson the court held the ordinances under attack had been improperly enacted when the charter of Panama City required that "passage of all ordinances and resolutions shall be taken by `Yeas' and `Nays' and entered upon the journal" and the minutes recited the ordinance was carried by a unanimous affirmative vote.
The City contends that the "minutes" to which appellant refers are only summaries of what occurred at the meetings and that the "official minutes" consist of the summaries and the recorded tapes of the meetings.
[This issue was not preserved for appeal, and not considered by the appellate court. Other Florida [and Ohio] court cases state the un-transcribed audio recordings of meetings are not minutes because they are never amended (if errors) adopted or approved as the official minutes.].
Accordingly, we reverse the order which denied the motion for temporary injunction and remand to the trial court to order a temporary injunction after consideration of the issue of bond.
REVERSED AND REMANDED.
GLICKSTEIN and HURLEY, JJ., concur.
MOORE, J., dissents without opinion.
—————
NELSON v. STATE EX REL. AXMAN, 83 So. 2d 696 (Fla. 1955)
THORNAL, Justice.
Appellants, who were respondents in a mandamus proceeding below, appeal from the granting of a peremptory writ directing them to issue a beer and wine license to the appellee-petitioner.
The petition for the writ alleged that the appellee duly applied for an occupational license to permit her to sell beer and wine and that although she has complied with all the ordinances of the City, she was refused the license. Although many incidental issues are raised, the principal defense was that appellee's business was located in a zone in the City of Panama City where, by two ordinances, it was required that a beer and wine establishment be at least 1,000 feet from a school or church or other beer and wine license holder and that the appellee's location was within less than the required 1,000 feet of all three.
The nub of the controversy is the question of the validity of the ordinance.
The charter of the City of Panama City, Section 40, Chapter 11678, Laws of 1925, reads as follows:
Sec. 40. Legislative Procedure. — A majority of all members elected to the City Commission shall constitute a quorum but a less number may adjourn from day to day and compel the attendance of absent members in such manner and under such penalties as may be prescribed by ordinance. The affirmative of a majority shall be necessary to adopt any ordinance or resolution, and the passage of all ordinances and resolutions shall be taken by `Yeas' and `Nays' and entered upon the journal.
The Minutes of the meetings of the City Commission which adopted the ordinances recite the time and place of the meeting and the presence of a legal quorum of the City Commission, naming them.
The Commission thereupon in each instance proceeded to adopt the ordinance. On one of these ordinances the action of the council is shown as follows, to-wit:
The following Ordinance being presented as an emergency Ordinance, and the same being read in full, thereupon it was moved by Commissioner Ward, seconded by Commissioner Jinks and carried by a unanimous affirmative vote that said Ordinance be adopted.
The action was shown to be identical on the second ordinance except as to the names of the Commissioners.
The attack on the ordinance is grounded on the proposition that the City Charter requires that the passage of all ordinances be taken by Yeas and Nays and entered upon the journal and that in this instance the journal fails to reflect the Yeas and Nays on the ultimate passage of the ordinance.
The Circuit Judge held the ordinance ineffective because of failure to comply with the requirements of the charter. We are compelled to agree with the trial Judge.
The City has only such powers as are specifically granted to it or necessarily implied from the powers so granted.
We have held that an ordinance of a municipal corporation is not enforceable until every provision of the city charter necessary to give it legal existence has been strictly complied with. See Adams v. Isler, 101 Fla. 457, 134 So. 535; State ex rel. Stephens v. City of Jacksonville, 103 Fla. 177, 137 So. 149.
In considering an act of the Legislature in the light of a similar requirement of our State Constitution in the case of Lasseter v. State, 67 Fla. 240, 64 So. 847, this Court commented upon the opinion of Judge Cooley in Steckert v. City of East Saginaw, 22 Mich. 104, wherein it was held that the record of a vote on a municipal ordinance to the effect that it was adopted "unanimously on call", the names of those voting not appearing otherwise than by the statement of those present at the opening of the session, is not a compliance with a statute similar to the one before us.
It was further held that under such a statute the Yeas and Nays on each ordinance or resolution must be entered at large on the Minutes.
The reason for the rule is further stated in the cited case as follows:
`What is designed by this statute is to fix upon each member who takes part in the proceedings on these resolutions the precise share of responsibility which he ought to bear, and that by such an unequivocal record that he shall never be able to deny either his participation or the character of his vote. * * *'
In making reference to the legislative requirement that the vote of the members of a city commission be recorded, Judge Cooley in the cited case further stated:
* * * `They have imperatively required that there should be record evidence of a character that should not be open to contradiction, or subject to dispute; and their requirement cannot be complied with according to its terms, nor satisfied in its spirit and purpose, without entries in the minutes showing who voted on each resolution embraced by the section quoted from the charter, and how the vote of each was cast. In other words, the ayes and noes on each resolution must be entered at large on the minutes, so that the presence or participation of any member shall not be left to conjecture or inference.'
We hold, therefore, that in view of the particular charter provision the ordinances under attack in the case at bar were not adopted by the City Commission of the City of Panama City in accordance with the requirements of its charter and that they, therefore, failed to become effective and constitute no bar to the issuance of the license sought by the appellee.
We have considered the other questions raised by the appellant and find that they are without merit. The judgment is, therefore, affirmed.
DREW, C.J., TERRELL and THOMAS, JJ., concur
———- https://cite.case.law/mich/22/104/
Steckert v. City of East Saginaw, 22 Mich. 104 (1870)
Oct. 27, 1870 · Michigan Supreme Court
22 Mich. 104
Case outline
Majority — Cooley, J.
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Jacob Steckert et al. v.The City of East Saginaw et al.
Cooley, J.
This is a bill to restrain the collection of an assessment for paving Washington street, in the city of East Saginaw, with what is known as the Nicholson pavement. The complainants are owners of lots in said city upon which the *106assessment is a lien, and they ask for a perpetual injunction against its collection upon the ground that the proceedings to levy it have not been in accordance with the charter of the city, which prescribes the several steps to be taken in such cases.
The first ground of alleged invalidity in the proceedings is that the several votes in the common council ordering the improvement made, directing a contract therefor and the levy of an assessment for payment of the expense thereof, were not taken by ayes and noes as the charter requires.
The provision of the charter on this subject is that “Whenever required by two members, the votes of all the members of the common council, in relation .to any act, proceeding or proposition, had at any meeting, shall be entered at large on the minutes; and such votes shall also be entered in relation to the adoption of any resolution or ordinance, report of a committee or other act, for taxing or assessing the citizens of said city, or involving the appropriation of public moneys.” — S. L. 1859, p. 971.
The proceedings in question were such that the votes thereon were required, under this section, to be entered at large on the minutes whether specially required by two members or not. The defendants insist that this section has been complied with, in substance and in spirit, in every instance; while the complainants on the other hand argue that a disregard of its provisions is manifest throughout. Upon this point the evidence of the minutes must be conclusive, and if we find the votes entered there at large, the objection must fail.
On looking at the minutes we find that the votes have uniformly been entered and recorded in the same way; and we may therefore take the proceedings on any one of the several votes as a sample of them all. The vote ordering *107the contract for paving the street to be entered into was had June 29th, 1868. The record of the meeting of the council on that evening begins as follows:
Unless the minute is a compliance with the section of the charter in question, it is not claimed by the defendants that it has been complied with at all; but their argument is that the record shows, first, the names of the several aldermen who were present when this action was had; second, that the roll was called on the vote; and third, that each of them, when the roll was called, voted for the adoption of the resolutions. This being so, the vote is, in effect, entered at large on the minutes, and the repetition of the names of the alderman in the minutes, when the precise position of each upon the resolutions submitted was already recorded, would have been only an idle ceremony, accomplishing no useful purpose.
We have 'found ourselves unable to take the same view of this record that is taken by the counsel for defeudants. There can be no doubt that the provision of the statute which requires these votes to be entered at large on the minutes, was designed to accomplish an important public purpose, and that it cannot be regarded as immaterial, nor its observance be dispensed with. — Spangler v. Jacoby, 14 Ill., 297; Supervisors of Schuyler Co. v. The People, 25 Ill., 183. The purpose, among other things, is to make the members of the common council feel the responsibility of their action when these important measures are upon their passage, and to compel each member to bear his share in the *108responsibility, by a record of his action which should not .afterwards be open to dispute. Now if the record in the present case shows precisely who voted for the resolution in question, it is apparent that the object of the statute has been fulfilled, and we may be able to sustain the action, notwithstanding the compliance with its provisions has not been exactly literal.
We are of opinion that the record does not show with 'sufficient certainty that all the members present at roll-call, at the opening of the meeting in question, voted for the resolutions; and if it does not show that all did, it does not show that any particular one of them did. What it does show is, that at roll-call when the meeting was opened certain members named were present, and that ¡afterwards, before the meeting adjourned, certain resolutions were adopted unanimously on call.
Now if it were a legal presumption that all the members who were present at the call to order of such a meeting remained until its adjournment, and that no others came in and took their seats afterwards, and if it were also a presumption that every member voted on each resolution on roll-call, the argument of defendants would be complete, and we could say with legal certainty from this record that these resolutions were passed with the affirmative vote of each of the members named as present in the clerk’s minutes of the meeting in question.
But surely there are no such presumptions of law, and if there were, they would be contradictory to the common .experience of similar official bodies.
It is very well known that it is neither observed nor expected that when a legislative body of any grade has commenced its daily session, the doors will be closed to prevent the ingress of members-not prompt in arrival, or the egress of others who may-have occasion to leave.
The actual attendance on such a *109body will frequently be found to change materially from hour- to hour, so that a record that a vote was passed unanimously would be very slight evidence that any particular member present at the roll-call voted for it, or that any member not then present did not.
And even if the record could’ be held to afford a presumption on that subject, its character must be so faint, doubtful, and unreliable as to subserve no valuable purpose. Moreover, the members actually present are usually allowed to vote or not to vote at their option, except in cases of close votes, or where an appeal is to be made to the people; and if the vote of' a quorum is in favor of a resolution and no vote is cast against it, the record may still be that it was “adopted unanimously on call,” though some of the members present abstained from voting.
What is designed by this statute is, to fix upon each member who takes part in the proceedings on these resolutions, the precise share of responsibility which he ought to bear, and that by such an unequivocal record that he shall never be able to deny either his participation or the character of his vote.
But manifestly we cannot determine in the present case with any certainty that any one of the aldermen named — Alderman Buckhout, for example — actually voted for the resolutions in question.
We know he was present when the council convened, but we have no record which points specifically to his individual action afterwards.
Suppose he were to contest the tax as illegal, and the city authorities were to insist upon an equitable estoppel arising upon bis vote in its favor, and he should deny such vote, we should look in vain in this record for anything absolutely inconsistent with such denial.
Suppose his constituents, dissatisfied with this vote, undertake to call him to account for his participation, and he were to say to them, “I was not present when these resolutions were adopted;, *110I was indeed present when the council convened, but was called away soon after on private business;” this record plainly could not be relied upon to contradict his assertion.
The persons arraigning him would be obliged, in order to •fix his responsibility, to resort to the parol evidence [oral evidence or other less reliable evidence of an event] of his associates or of bystanders. But the legislature understood very well the unsatisfactory character of that kind of evidence, and they did not intend that the power to call an alderman to account for misconduct, delinquencies, or errors of judgment in the performance of this official duty, should be left to depend upon it. They have imperatively required that there should be record evidence of a character that should not be open to contradiction, or subject to dispute; and their requirement cannot be complied with according to its terms, nor satisfied in its spirit and purpose, without entries in the minutes showing who voted on each resolution embraced by the section quoted from the charter, and how the vote of each was cast. In other words, the ayes and noes on each resolution must be entered at large on the minutes, so that the presence or participation of any member shall not be left to conjecture or inference.
It was frankly conceded on the argument by the counsel for the city, that if we reached this conclusion, the assessment in question must be declared void, unless the complainants could be held estopped from raising the objection on certain equitable grounds which were insisted upon-One of these grounds applies only to three of the complainants, and it consists in the fact that they were petitioners to the common council to have this very improvement made.
In Motz v. Detroit, 18 Mich., 495, we held that where parties petitioned the city authorities to have a certain improvement made which was provided for by the city charter.and ordinances, they must be understood as request*111ing that it be done under such charter and ordinances, and if those turned out to be invalid, the petitioners were not entitled to set up such invalidity as a basis for equitable relief against the action which they had requested. The case before us, however, is of a different character. The complainants do not claim that the charted under which the assessment was made is void, but they complain that its provisions have not been followed. Three of the complainants admit asking that the improvement be made in accordance with the law, but they aver that the attempt has been made to construct it in disregard of the law, and that their interests are injuriously affected by the failure of the council to follow the statutory provisions. If they are correct in their facts, we do not see how they can be estopped from claiming relief.
The second ground of estoppel applies to all the complainants, and it consists in the fact that they were all residents of the city of Bast Saginaw, and presumptively cognizant of the proceedings being taken, and of the irregularities which existed, and yet made no complaint until the work was completed, though they knew that under the charter the contractor who did the work could only be paid from this assessment. This ground of estoppel appears to us to be rather far-reaching and somewhat dangerous. To hold that a man is bound at his peril to take notice of illegal action on the part of the public authorities, is carrying the doctrine of constructive notice very much farther than the authorities will warrant. We think, on the other hand, that the citizen has a right to assume that the law is being obeyed instead of violated, by the public authorities, and that, at least, in the absence of any evidence of previous knowledge on his part of their unlawful action, he is in time with his protest when they proceed to deprive him of. his rights under such proceedings. -We. do not find, *112therefore, that any principle of estoppel will preclude the complainants from the relief prayed.
As the views already expressed dispose of the case, we might, perhaps, with propriety abstain from going farther, but there are some other questions presented by the record which are liable to arise again, and therefore ought, in justice to the parties, to be disposed of now.
One ground of invalidity assigned by the complainants is, that two of the aldermen who formed a part of the quorum of the common council when important action was taken, and without whose presence and- votes there would have been no quorum, were petitioners for the improvement, and owners of property liable to assessment therefor. The votes of these aldermen, it is claimed, were void, and consequently the action of the council, to which their votes were essential, was void also.
We think this objection without force. The action in question was legislative in character, and the interest these aldermen had in it was of precisely the same nature with that which every legislator has in a bill he votes for, which is to subject his property, in common with that of his fellow citizens, to taxation. They were laying down rules, which in their operation would affect alike and impartially their own interest and that of all others whose property would bo taxed. Such an interest is calculated to make a man careful and solicitous for the public interest, with which his own is inseparably connected, instead of inclining him to vote recklessly or corruptly when burdens are to follow which he must share. None of the cases cited on the argument in this connection have any bearing. Those only decide that a man is not to be permitted to occupy inconsistent positions when his own interest is directly involved; but in no question here voted upon could these aldermen have discriminated between their personal interest *113and that of the other tax-payers, except in fixing the taxing district; and as on that question if they voted at all it was against their apparent interest, and in favor of making the district which included their property the smallest possible, it is obvious that they did not by their vote place themselves in a position antagonistic to other tax-payers. If the common council acted as commissioners of apportionment in making the assessment upon the property that was to bear the burden, other considerations might be involved; but this charter designates a different tribunal for that purpose and prescribes great caution to insure impartiality. On the confirmation of the commissioners’ report questions might have arisen in which the interest of these aldermen would have been direct and special; but no such appear by this record.
It *is also objected that the resolution of the common council declaring the improvement contemplated to be necessary, is required by the charter (Laws of 1859, p. 997) to describe the improvement, while in the one adopted no sufficient description appears.
The contemplated improvement is only described as the paving of the street with the Nicholson pavement between specified termini. But we think this a sufficient compliance with the charter. The Nicholson pavement is a process well known and understood; and nothing but a very general description can be required or be important in this resolution. We also think that the removal of earth for the paving and the setting of curb-stones, concerning which some question is made by the bill, may properly be treated as incidental to this paving, and not as separate improvements requiring to be described and ordered specifically as such.
Two other objections are not so easy of disposition. One is that the resolution of the council, appointing com*114missioners to make an assessment of the expense of the improvement upon the property benefited, laid down a rule for their action which made it imperative on the commissioners to assess upon each lot the expense of paving in front of it, and allowed them no discretion to adopt any different basis of assessment if they regarded any other more equitable.
The resolution in question is of very uncertain construction, and we are not entirely satisfied that complainants are correct in the view they take of it. But it does not become necessary to decide this point, as in any event the decision cannot depend upon it. It is enough to say that, under the charter, the council have no power to give directions which shall govern the commissioners in making their assessment. The commissioners are “ to make an assessment upon all the owners or occupants of lands and houses within the portion or part of the city so designated [by which is meant, within the taxing district previously designated by the common council], of the amount of expense in proportion as nearly as may be to the advantage which each shall be deemed to acquire by making of such improvements” (Laws of 1859, p. 1011); and it is their judgment and not that of the common council which is to determine whether the adjoining lots are benefited in proportion to their respective street fronts, or whether, on the other hand, the assessment ought not. to be apportioned on some other basis than that of frontage.
The second objection just referred to is, that the commissioners, in their report of the assessment to the common council, did not report the valuation of the- respective lots assessed. This is expressly required by the charter (Laws 1861, p. 50), but the defendants insist that the provision on this subject is merely directory, since it can subserve no valuable purpose when the assessments are not made on a *115basis of valuation, and therefore the tax-payers have- no interest in its being complied with.
We think, however, that the tax-payers may have an interest in its being complied with. The commissioners are not precluded from making their assessment with some reference to valuation; and as the common council review their action, and hear and decide complaints of inequality .and injustice, the respective valuations of lots constitute important information to be possessed by them when proceeding to perform this duty. It is easy to see, where an assessment is made with reference mainly to frontage, that it might sometimes be exceedingly equitable to take valuation somewhat into account also, at least in exceptional •cases; and we cannot say, therefore, that the requirement that the valuation shall be returned is not mandatory. We think all legislative provisions, in such cases, should be regarded as mandatory, where they seem to be adopted for the protection of the tax-payer, and may have an important influence in shielding him from unequal and unjust burdens.
For the reasons given we are constrained to affirm, with costs, the decree of the court below.
Campbell, Ch. J. and Graves, J. concurred.
Christiancy, J. did not sit in this case.
