Thursday, March 07, 2013

Closing The "Abstaining" Loop

REMEMBER?
Last month I reported about the Planning Commission meeting at which contentious, de-frocked Costa Mesa Sanitary District Director Jim Fitzpatrick was elected Chairman of the Costa Mesa Planning Commission, HERE.

FITZY'S ABSTENTION
In that entry I criticized Fitzpatrick for choosing to abstain from voting on the only substantive issue on the agenda - a proposed development on the far west end of Victoria Street.  When it came time for him to cast his ballot he asked the City Attorney, Christian Bettenhausen, if he could abstain and was told he could abstain any time he wanted.  I took exception to that advice and quoted the city Municipal code section to support my contention that he was required to vote unless he had a conflict of interest.  Here's that section, 2-69, of the code:
Every councilman should vote unless disqualified by reason of a conflict of interest.  A councilman who abstains from voting acknowledges that a majority of the quorum may decide the question voted upon.  A councilman who is silent or inattentive and fails to vote without stating his abstention or without being disqualified shall be deemed to have cast a "yes" vote.

LOOKING FOR CLARIFICATION
Following the meeting I wrote to CEO Tom Hatch and City Attorney Tom Duarte, asking for clarification.  I cited an event a couple years ago when then-mayor Allan Mansoor refused to vote on an issue that degenerated into a shouting match between him and then-councilwoman Katrina Foley which prompted then-City Attorney Kimberly Hall Barlow to call for an immediate closed session to sort the issue out.  At that event, when the council walked out of the chambers to that closed session Mansoor just kept on walking and didn't return to the meeting and the issue of him being required to vote was never resolved.  The remaining council members voted 3-1 on the issue.  So, I wanted a clarification.

SHOULD VS. SHALL
This week Duarte called me and explained that the operative word in the code is "should" - I highlighted it in red above.  It is interpreted that a member may abstain for any or no reason at all on any issue.  Had the code used "shall", the member would be required to vote on every issue unless there was a conflict.  So, there we have it.  Words count.  I'm grateful to Duarte for his quick, clear reply.

MORE INFORMATION
 Later in the Municipal Code it is stated that once a member abstains from a vote he cannot later choose to vote on it - what's done is done.

THE PROJECT IS APPEALED
The issue that created this question in the first place - the project on Victoria - has been appealed to the City Council.

MESA GREEN DESIGN AWARD
The question of whether Fitzpatrick can nominate a person - City Building Official Khanh Nguyen - as the recipient of the Mesa Green Design Award is under review and may be clarified at the next Planning Commission meeting.  

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