International Municipal Lawyers Association - Local Government Blog

Not-so-Instant Replay at Council Meetings | November 19, 2008

Posted by: Warren Kraft, Assistant City Attorney/’HR Director, West Bend, Wisconsin

The use of the “proper” rules of parliamentary procedure is a frequent topic of the Municipal Attorneys List-Serv, and occasionally its Wisconsin counterpart.  We debate the theory behind Roberts’ Rules of Order and whether the legal counselor should attempt to angle the legislative body toward a “more appropriate” methodology.

Additionally, many jurisdictions televise the meetings of their local legislative bodies, oftentimes video-taped for replay on the public access channels.

These two apparently disparate topics melded together in recent weeks in a community north of Milwaukee along the western shore of Lake Michigan.  As the Milwaukee Journal-Sentinel reported in its Nov. 9 editions:

Port Washington Council uses instant replay

By Dan Benson of the Journal Sentinel

Posted: Nov. 9, 2008

Port Washington – Nowadays, it’s commonplace that village board and common council meetings are videotaped and broadcast over local cable systems.

But rarely, if ever, have officials gone to the tape to make sure they got a vote right.

But that’s exactly what the Port Washington Common Council did.


“We zigged when we should have zagged,” City Attorney Eric Eberhardt said.

A frenzied debate to allow boats from the city’s marina to be stored on a city-owned parking lot was at the center of the recent replay debate. The council voted 4-3 to approve the proposal. Doing so would generate up to $4,000 in revenue. But downtown businesses opposed the idea, saying it would be a blight on their picturesque lakefront.

Opponent Ald. Allan Haacke went to Eberhardt after the vote and said the vote had been made inappropriately, violating Robert’s Rules of Order, which is universally accepted as scripture when it comes to running an orderly public meeting.

Like any good referee wanting to get a call right, Eberhardt went to the tape.

And here’s what it showed: Ald. Burt Babcock made a motion to call the question to stop the debate and force a vote. At the same time, Haacke moved to table the issue, which also would stop the debate but postpone any action to a future meeting.

Mayor Scott Huebner’s “head was kind of on a swivel” reacting to the competing motions and other discussion that was going on, “and looked to me for guidance,” Eberhardt said.

Relying on his memory of Robert’s Rules, Eberhardt told Huebner that the motion to call the question should take precedence over all other motions.

So instead of calling for a second to Babcock’s motion to call the question, or even a vote on the motion, the tape showed, Huebner called for a vote on the underlying issue of whether to store boats in the city parking lot. Technically, Eberhardt also found, a motion to table takes precedence over all other motions, with calling the question the next in line.

“The real deficiency was that neither of those motions was seconded,” Eberhardt said.

Eberhardt notified the council of the error, and on Wednesday, aldermen voted to rescind the Oct. 21 vote, then re-voted, this time defeating the proposal 4-3. And, adding more drama, between the first and second votes, the city’s Business Improvement District voted to oppose the measure. That swayed one alderman to switch sides.

What happened in Port Washington is a first for Ed Huck, executive director of the Madison-based Wisconsin Alliance of Cities, and “is demonstrative of new technology serving the public interest.”

Videotaping or audiotaping public meetings is not required by state law, but local governments have chosen to do so, often at great expense, to better serve the public, Huck said.

“Here is a prime example,” Huck said. “All of a sudden, I have this picture of the council president in a striped shirt with his head under a hood, looking at a TV monitor.”

If readers of this blog have not personally experienced this on-the-job frenzy, we surely know of our colleagues who have had to reach into the recesses of their minds and have a ready answer.  Many times, we are tempted to ask for a brief recess to research the question but forgo that opportunity as the legislative consideration may increase in intensity.  During post-meeting reviews, it is all too easy to offer critiques of how we should or should not have handled an issue.

So, what do we make of Eric’s experience? 

First and foremost is the municipal attorney’s constant commitment to “get it right.”  On ocassion, it might not be the first time and turning to the tape can help fix the situation.  Oftentimes, in my former position, the city clerk and I would exchange puzzled glances about what the council just said or did, and we would “check the tape” the next day.  Before cable technology swept over our community, we always had old-fashion analog cassette tape to review.

During other debates, a council member would offer a motion in highly convoluted language, then glance at the city staff dais to ask, “Did you get that?”  Many times, we would seek clarification so we understood the concept, the principal effect to help the member’s colleagues also understand what was proferred, and then promise to word it correctly.  “Check the tape” before inserting the text into the draft minutes were the next day’s objective.  A level of trust and credibility is necessary for this to occur.

A secondly, and almost equally important lesson, is the willingness to listen to the “next-day quarterbacks” who themselves might be befuddled by what occurred the night before.  I do not recall any of my professors endorsing use of the phrase, “We zigged when we should have zagged.”  We know about colleagues who interpret the call for “further review” as a threat to one’s integrity.  There are some quarters where an admission is not viewed as weakness, rather interpreted as enlightenment.  Well, maybe just the one time …

Most of us can read between the story’s lines and envison a rather heated debate on the Port Washington City Council floor.  In an honest moment, we might even recall a similar situation, or perhaps, situatons, where we ourselves got caught up in the debate and found ourselves stumbling when the “call” came in our direction.  At its organizational meeting, my former Council began discussing an item, though related, was not specifically listed on the agenda and as they included me more in the conversation, I found myself more detached from my “watchdog” role.  The city clerk turned and whispered that this was not on the docket.  It was enough to prompt me to interject that this conversation needed to be deferred until it could be properly posted.  And, later in the afternoon, I had to explain myself to the city manager who was absent from that noon hour meeting.

When the end of the day comes, our role as legal advisor is based on credibility.  “A frenzied debate” occurred, a parliamentary mistake occurred, and the city attorney responded promptly to “further review” and to make appropriate reports and recommendations.  Isn’t it a pleasant read when the result and news report are not heavily weighted with a gotch-ya?

And, keep in your arsenal a now-acceptable legal concept for mid-course corrections: “We zigged when we should have zagged.”

1 Comment »

  1. This brings back painful memories of a divided county charter commission, each side trying to use Robert’s Rules to gain an advantage over the other, which leaves the attorney umpiring an ugly brawl (that has not, thankfully, happened at my present position).

    Under our new land development regulations, we have three boards who administer one aspect of the regulations or another, and each adopts its own rules. We drafted those rules, and we included the following statement:

    “If a procedural issue cannot be resolved by reference to these rules or to the City Code, the Commission may be governed by any generally accepted guide to the rules of parliamentary procedure including but not limited to Robert’s Rules of Order. Provided, however, that a failure to comply with a rule of parliamentary procedure shall not be a basis for declaring a decision of the Commission invalid unless such failure constitutes a violation of law or the City Code.”

    The second sentence allows a board enough wiggle room to work towards a decision they understand, even if they don’t all agree.

    Comment by Al Galbraith — November 21, 2008 @ 3:59 pm

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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