HomeMy WebLinkAboutSummary Memo SRSecond Reading Ordinance
AGENDA SUMMARY MEMO
Date: April 1, 2010
Commission Meeting Date: April 22, 2010
Sponsor: COMMISSIONER RICHARD P. DUNN II
Agenda Item: ORDINANCE -
Subject: AMENDING SECTIONS §§2-614,2-884,18-85,18-89,18-90,18-92,29-A, 29-13, 29-C, and
38-233, ALL PERTAINING TO FOUR-FIFTHS (4/5) VOTE REQUIREMENTS
Impact: CITYWIDE
Purpose of the Item:
In the city charter and ordinance, there are four (4) variations of references to the four -fifth
(4/5) vote - "members of the city commission", "of its members", "then in office", and "city
commissioners present." The four-fifths (4/5) reference to "then in office", and "city
commissioners present" are contained in the charter, and are not the subject of the suggested
ordinance revisions. The different variation on a theme of four-fifths (4/5), can and does lead to
confusion as to both its legal and practical application.
Consequently, the subject of this ordinance revision pertains to the Code's four-fifths (4/5)
reference to "members of the city commission" and "of its members." The confusion surrounds
whether each such reference carries with it the meaning requiring four (4) actual votes or
whether it means that only a prescribe percentage vote is required of the legal quorum and not
of the entire membership. Adding to the confusion is how vacancies or abstentions impact the
four-fifths (4/5) calculation.
In order to obviate any legal and practical ambiguity surrounding how the four-fifths (4/5) vote
is to be calculated when vacancies or abstentions occur, the purpose is to be explicitly clear how
the four-fifths (4/5) super -majority can be harmonized with the critical need of the government
to be able to conduct its business.
Background Information:
Recently, the Commission was nearly confronted with procurement items requiring four-fifths
(4/5) vote while convening with only a quorum, which is three (3). Adding to the complexity of
the application of the four-fifths (4/5) vote was that the quorum resulted from vacancies. As a
result, the items were withdrawn because of doubt surrounding whether the quorum was
sufficient to pass a four-fifths (4/5) agenda item. Going forward, the commission could
conceivably find itself confronted with similar such circumstances when faced with a four-fifths
(4/5) vote requirement, whereby a quorum results from either abstentions or commission
vacancies created by resignation, death, suspension, or physical incapacitation.,,
1 The question of absences is not addressed in this context because of its voluntarily or semi- voluntarily nature is in
stark contrast to abstentions (which occur by virtue of the conflict provisions of state statutes) or vacancies created by death,
suspension, or physical incapacitation.
Agenda Item ORDINMCE—
The suggested ordinance revisions pertain to the Code's ten (1o) references to the four-fifths
(4/5) vote, in the context of "members of the city commission" and "of its members." The
problem arises because of the confusion surrounding how the four-fifths (4/5) voted is to be
calculated in the context of "members."
As a general rule courts have interpreted two thirds (2/3) or four-fifths (4/5) vote to mean the
prescribe percentage required to be achieved of the legal quorum and not of the entire
membership.2 Interestingly, another treatise holds quite to the contrary (any reference to two-
thirds (2/3) or four fifths (4/5) of the council or commission means the entire local legislative
body).3 Complicating the problem even more is when a quorum results from abstentions or
vacancies created by resignation, death, suspension, or physical incapacitation. In most
instances, for public policy reasons, courts have exclude counting the vacant or abstained seats
as the denominator in the calculation of whether the four-fifths (4/5) votes is satisfied.4
The amendments of the city's four-fifths (4/5) ordinance requirements is developed to eliminate
the confusion and also to prevent the city from being incapacitated in the future. Achieving this
end requires balancing the need of the government to maintain the capacity to act and
respecting the need that certain items have been deem to be so important that it requires a
super -majority. It seems good public policy that the city's capacity to conduct its business takes
priority and particularly so when it can do so and still respect the need to address certain items
that require a super majority.
To achieve this end the amended language would reflect as follows: in those instances where the
ordinance states "affirmative vote of four fifths of the members of the city commission" it would
follow — "or a unanimous vote of the quorum created bu either abstentions, resignations, or vacancies
resulting from death, susl2ension, orphusical incapacitation". In other instances where the ordinance
states '!four-fifths vote of its membership" it would follow — "or a unanimous vote of the quorum
created bU either abstentions reanations or vacancies resulting from death suspension or 12husical
incapacitation." It is important to note that these suggested revisions excluded quorums created
by absences, which are in a different class than abstentions (by virtue of the conflict provisions
of state statutes) or vacancies created by death, suspension, or physical incapacitation.
Mc Quillian Municipal Corporations, 3d §13.31.20; Adkins v. Philips, 8 So. 429, 431 (Fla. 1890); Steward v. City of De
Land, 75 So.2d 584, 586 (Fla. 1954); See also, Homestead V. Levy, 444 So.2d 1074,1075 (Fla. 3d. DCA 1984)
' Antieau on Local Government Law, §25.09(2); NOTE: Streep v. Sample 84 So.2d 586, 588 (Fla. 1956); Banana River v.
City of Cocoa Beach, 287 So.2d 377, 380 (Fla 4th DCA, 1974); Fox v. Fratello, 308 So.2d 581 (Fla. 1975) at first glance appears to
hold that the four-fifths (4/5) requires four votes minimum in a five member commission, but the reasoning was not grounded
in whether the "governing body' means "all" or "of the quorum", instead it was grounded in the fact that a state statute
compelled a minimum three votes to pass an ordinance, and since a super majority was expressed in the context of a three (3)
vote minimum to pass an ordinance, the court concluded that a four-fifths (4/5) supermajority obviously compelled more than
three (3) votes.
4 See, e.g. Miller v. Marshall, 184 So. 870, 874 (Fla. 1938); See also, Street Improvement Program v. Denmark
Township, 483 NW 2d 508.510 (Minn. 1992), citing State vHoppe, 260 NW 215,220 (1935).
Agenda Ite= ORDINANCE-