dealing with tie votes in municipal meetings

[Guest citizen Jim]

At a planning committee meeting with a quorum present, a vote was made to decline the conditional use application.  The vote was a tie.  My understand is that had the vote been to approve and there was a tie, the application would be denied.  So, three questions:  1. is this the same as a failure to approve the application and is the process now over?  2.  the Chair bullied the committee to continue the discussion to a subsequent meeting with no more public debate, is that proper?  3.  if continuation is proper, can members not present for the original hearing vote at the continued one not having heard all the testimony from the first meeting?

[jstackpo]

By your tie vote, you declined to disapprove the application, which does NOT mean that you approved it -- unless your planning committee has special rules of logic all its own.

Question 1):  So... can the applicant apply again since his application is in a sort of double negative limbo?  Your rules might answer that question (but probably do not). If he can, be sure, as you note, to phrase the application in the positive: "Shall it be approved?"

2).     If there was no point of order raised when the chair bullied you into postponing without a vote, the bully won.   Ask your lawyer if he/she can get away with that without a fight.

3)  Beats me.  That is probably a legal question.  RONR would say: "Yes, as members they can vote, no matter what they know or don't know."

 

[Gary Novosielski]

1 hour ago, Guest citizen Jim said:

At a planning committee meeting with a quorum present, a vote was made to decline the conditional use application.  The vote was a tie.  My understand is that had the vote been to approve and there was a tie, the application would be denied.  So, three questions:  1. is this the same as a failure to approve the application and is the process now over?  2.  the Chair bullied the committee to continue the discussion to a subsequent meeting with no more public debate, is that proper?  3.  if continuation is proper, can members not present for the original hearing vote at the continued one not having heard all the testimony from the first meeting?

This is why RONR says that a motion is not in order if accepting it or defeating it has the same result.  The motion to deny failed, so as with any failed motion, nothing happens.  But if it had passed, nothing still would have happened,   Voting not to do something can be accomplished by not making any motion.

There may be custom rules that apply to your specific case, but if the rules in RONR apply, motions should always be phrased as a choice to do something, not to do nothing.

[Guest Who's Coming to Dinner]

32 minutes ago, Gary Novosielski said:

This is why RONR says that a motion is not in order if accepting it or defeating it has the same result.  The motion to deny failed, so as with any failed motion, nothing happens.  But if it had passed, nothing still would have happened,   Voting not to do something can be accomplished by not making any motion.

There may be custom rules that apply to your specific case, but if the rules in RONR apply, motions should always be phrased as a choice to do something, not to do nothing.

I must differ. In the absence of any other rule, adopting a motion to deny an application disposes of the application. Defeating a motion to deny an application leaves the application pending.

[Greg Goodwiller, PRP]

Agreeing with "Guest Who's . . .", 

With that motion defeated, a different motion  would then be in order. It could be "that the application be accepted,"  but under the circumstances, it would probably be more helpful to move that it be either postponed indefinitely (which kills it, if adopted) or that it be referred (which allows the committee to which it is referred to figure out how to bring back a motion that a majority will support).

 

[Joshua Katz]

Land use boards frequently operate under laws which do require that a motion to decline a permit be adopted when a permit is denied. It is not sufficient, under those laws, to vote down a motion to approve. Since a tie vote means the motion fails, this board will need to keep trying to pass one motion or the other. (In fact, it may be harder - much of the time, a specific threshold greater than a majority is required to adopt either.) So the answer to 1 is most likely that we don't have an answer, and the OP will need to consult an attorney with expertise in the area.

As to 2, bullying is never proper. How it intersects with public comment is, again, a legal question.

The answer to 3 is most likely yes, unless the law has something to say about it too - in my experience, that is less common.

[Guest citizen Jim]

Thank you all for your replies.  First I am not a member of the committee in question.  Second, my issue is whether proper protocol was followed.  The Planning Commission has two functions - approve the Conditional Use application with or without conditions or deny it.  This meeting was a legal meeting.  A vote was taken to deny.  That vote was a tie.  My thinking is that since it was a tie, no action is recorded.  That means the conditions in existence before the vote remain in place.  That is that the application is not approved (the state of the application before the meeting and vote) and the decision is valid.  It would seem to me that the applicant would need to present a new application.  My opinion is that a motion to reconsider at a future meeting without permitting open comment is not "legal".  The Chair thought there must be a tie breaking process so insisted on the delay.  I am waiting to here if the municipality has such a process but they shouldn't.  Any comments or experience with my dilemma?

[Atul Kapur]

1 hour ago, Guest citizen Jim said:

the application is not approved (the state of the application before the meeting and vote) and the decision is valid.

Except that no decision was actually made. The application has not been disposed of one way or the other. Therefore, it is still pending and no new application is required. In fact a new application would probably be out of order as the original one is still under consideration.

1 hour ago, Guest citizen Jim said:

My opinion is that a motion to reconsider at a future meeting without permitting open comment is not "legal".

We don't deal with "legal" here. I see nothing wrong with a motion to reconsider in this situation. The details on a requirement for open comment sound like they should be in your local rules.

[Josh Martin]

21 hours ago, Guest Who's Coming to Dinner said:

I must differ. In the absence of any other rule, adopting a motion to deny an application disposes of the application. Defeating a motion to deny an application leaves the application pending.

If the rules in RONR alone were controlling, I am inclined to think that a motion to “deny” an application serves no useful purpose and should not be offered. I concur with Mr. Novosielski that, in such cases, there is no meaningful difference between defeating a motion to deny an application and approving a motion to deny an application (or defeating a motion to approve an application). In any of these cases, the application is not approved for the time being, and the motion regarding the application is no longer “pending” in the parliamentary sense.

I also concur with Mr. Katz, however, that many municipal bodies have their own rules on this matter, or are subject to rules in applicable law, and those rules take precedence.

Since it seems to me that this process is governed by such rules rather than the rules in RONR, I doubt this forum will be of much assistance.

4 hours ago, Atul Kapur said:

Except that no decision was actually made. The application has not been disposed of one way or the other. Therefore, it is still pending and no new application is required. In fact a new application would probably be out of order as the original one is still under consideration.

The motion is no longer pending, because it was defeated. RONR has no rules concerning whether an application is “pending.”

Edited May 30, 2019 at 09:22 PM by Josh Martin

[Atul Kapur]

1 hour ago, Josh Martin said:

RONR has no rules concerning whether an application is “pending.”

You just said, and I agree, that we're beyond RONR in this case.

[Richard Brown]

1 hour ago, Atul Kapur said:

You just said, and I agree, that we're beyond RONR in this case.

I agree, and agree specifically with the comments by Messrs Katz and Martin that boards such as zoning boards are frequently subject to rules or ordinances which sometimes require them to specifically approve or deny a zoning variance or permit or whatever.  It is not unusual  for such boards or city or county governing councils to consider motions to reject (or deny) an application.   What happens when a motion to reject or deny fails on a tie vote is probably determined by their own rules or precedents.   I do think all of here would agree, however, that the failure of the motion to deny on a tie vote does not amount to approval, at least not pursuant to any rule in RONR.

[Josh Martin]

12 hours ago, Richard Brown said:

I do think all of here would agree, however, that the failure of the motion to deny on a tie vote does not amount to approval, at least not pursuant to any rule in RONR.

Yes, I don’t believe any of us are suggesting that the application was approved.

It seems to me the only question is what action, if any, must be taken on the application now.

So far as RONR is concerned, a motion to approve the application (or a motion to deny the application, if there is some purpose in such a motion) may be made again at the next regular meeting. Alternatively, the assembly could do nothing. RONR has no rules concerning the submission of applications, so whether or not the applicant is required to resubmit the application, and whether or not the assembly is required to take any further action on the application, is a question which should be answered in the organization’s rules or in applicable law.

Since this appears to be a committee, I concur with Mr. Kapur that a motion to Reconsider would also be appropriate, at least so far as RONR is concerned.

Edited May 31, 2019 at 01:56 PM by Josh Martin

[Gary Novosielski]

I don't think a motion to Reconsider would be in order, as the matter can be reached by simply renewing the motion.  

[Guest Zev]

Quote

 

Standard Descriptive Characteristics

The motion to Reconsider:

...

2. Can be applied to the vote on any motion except:

   (a) a motion which can be renewed (see pp. 339-40);

 

RONR 11th edition page 318