PATTOO WEEK, Part 5: We’ll Take a Little Break Here for PARLIAMENTARY PROCEDURE FUN TIME!

PATTOO WEEK 5

This piece is REALLY dry, but if you’re the sort of person who reads Orange Juice Blog over Easter Weekend, you will probably read it anyway. We’re not here to judge you.

 

We’re putting our regular series on hold this day before Easter, when people are generally doing something else than reading blogs and anyway there was basketball to watch and Passover Seders to have and preparations for Easter to make.  So let’s clear our some of the material that we skipped over last time, that is somehow both funny (that may be overstating things) and dry (that definitely is not overstating things) at the same time.  It involves parliamentary procedure — which means that, as you’d guess, it also involves Councilmember Jordan Brandman.

[1] Jordan Brandman Begs Your Forgiveness for His Being “Mr. Procedure” — Which He Ain’t

It starts with Tom Tait wanting to make a motion to stop Kris Murray’s “Stop the Gate Tax!” proposal from being voted on at the March 3 meeting where it was proposed.

If you want to see our normal links in this series, head over to yesterday’s (Friday’s) installment.  If you continue, prepare to learn some parliamentary procedure.  You may find it fun, if you have an unusual definition of “fun.”

TAIT: I’ll make a motion to table this to get that additional information, particularly from rating agencies.  Because if it’s going to cost us, if it’s going to hurt us in every rating for bonds, this will cost us real dollars today.

CLERK: Is that a substitute motion, as there’s already a motion?

TAIT: It’s a precedent motion.

HOUSTON: A motion to table takes precedence over the main motion provided it is seconded and there’s a majority vote to table.

TAIT: So there’s a motion by myself, is there a second —

MURRAY: I’d still like to speak to the main motion, if I may.

TAIT: This takes precedence.  Is there a second?

VANDERBILT:  Second for the purpose of a question.

MURRAY: We either can have discussion or we can’t.

TAIT:  So, excuse me —

BRANDMAN: Sir, can I be acknowledged just for a moment of clarification?

TAIT:  Let me ask this question first.

BRANDMAN: You’re going to want me to get this clarification.

TAIT: I probably have the same question.  Mr. City Attorney, a motion to table …

HOUSTON:  A motion to table that is seconded is a precedential motion to the main motion on the table and it cuts off debate on that motion for purposes of acting on the motion to table.  We now have a motion made by the Mayor to table, it has been seconded I believe by Councilmember Vanderbilt, so the next action the body could take would be to discuss the motion to table and then act on that motion.

TAIT:  Very good.  So we have a motion to table.

So, Tait doesn’t think that this is a good time to discuss this motion.  Vanderbilt second the motion to table, but wants to ask a question.  Murray objects that he can’t ask a question now that the motion to table has been seconded.  And now things are about to get somewhat frenzied and confused.

TAIT:  Very good.  So we have a motion to table.  Any discussion on that first?  Councilmember Brandman?

BRANDMAN: Forgive me for being “Mr. Procedure,” but I would not recommend a motion to table.  I’d recommend a motion to postpone, because a motion to table doesn’t have debate, and it’s not parliamentary proper, parliamentarally appropriate.  So if you’d like to do a motion to postpone to a date certain, I would recommend that motion because I think that’s your intent.

TAIT: Actually, my intent is a motion to table —

BRANDMAN [interrupting]: A motion to table is a non-debatable motion, and I would ask clarification from the City Attorney because we did this months ago and the appropriate motion is a motion to postpone.

HOUSTON: A motion to table, once seconded, cuts off debate on the main motion, and if it’s approved by a majority vote then that item is tabled, if you will, and if it is not then brought off the table and acted on at this particular meeting then the action fails, as a procedural matter.  A motion to postpone to a date certain has the same effect, if you will, except that it places it on a specific upcoming agenda of the City Council for potential action.  Those are the differences.

TAIT:  Very good.  So, I’m going to stay with my motion to table.  And we can discuss the motion to table, as Councilman Brandman just did?

VANDERBILT:  No, I’d like to raise a question, I think he’s  —

MURRAY: We can’t discuss it.

VANDERBILT: I’m not going to discuss the motion to table, I would like to ask a question, which –

MURRAY: It’s too late.  [unintelligible]

VANDERBILT: No?  Point of order?

HOUSTON: [Long pause] Motion to table is not debatable.

TAIT: So we have a motion and second to table.  Please vote.

CLERK: The vote is two ayes, three nos, with a recorded “no” by Council Member Brandman, Mayor Pro Tem Kring, and Council Member Murray.

TAIT: OK, now we’ll go back to the original motion by Councilmember Murray, seconded by Mayor Pro Tem Kring to approve this item.  Councilmember Brandman.  Oh, Councilmember Murray.

I would not consider myself to be “Mr. Procedure,” but I’m reasonably well-versed in it and: pretty much everyone was wrong.  As I know that some people associated with Anaheim government are reading these pieces, it’s worth explaining things before Tuesday’s meeting.

(1) Tait made the wrong motion.  He didn’t want to make a motion to table, because he didn’t want to cut off debate on the main motion — and, beyond that, he didn’t want it to be allowed to be picked up off the table later in the meeting.  A motion to table seeks to set down the present matter; it doesn’t mean that it can’t be picked up again during the meeting.  Tait would especially not want to table given that Vanderbilt said, in the course of seconding it, that he had a question.  This is a pretty common (and usually benign) mistake.  However, more importantly:

(2) Murray was wrong in asking to speak to the main motion.  She couldn’t.  Had the motion been what both she and Tait thought it was — and what the Parliamentarian (the City Attorney Michael Houston should have told him it was), then she would have been right.  Again, pretty benign.

(3) Vanderbilt was wrong to try to combine a second of a motion to table with a question.  The likelihood is that his question was a point of order, of procedure, or of information — in which case it was entirely appropriate, but not after his second.  He could and should have said that, while he intended to second the motion, he first had a question along the above lines.  (The question could not involve the merits of the main motion or the motion to table.)  Even after seconding it, though, he could have sought permission from the Chair to ask such a question — and could have interrupted someone (such as Murray) to do it.

(4) Houston was wrong that the body immediately had to move to a vote on the motion.  It was still entirely appropriate for the body to hear a point of order, of procedure, or of information.  What would not be proper was for the body to continue debate on the merits on the main motion or of the motion to table.

(5) Tait was wrong to invite discussion on the motion to table.  Because, again, you can’t.

(6) Brandman was wrong to suggest that Tait wanted a “motion to postpone to a date certain.”  This motion would mean that Tait wanted to discuss it again on a particular day.  What Tait clearly wanted was to get some questions settled in advance of future discussion — and, when it was ready, to allow it to be reagendized again.  This is the other kind of “motion to postpone” — the “motion to postpone indefinitely.”  This accomplished exactly what Tait wanted — “let’s not deal with this today” — and, importantly, it was debatable.  Unfortunately, everyone bought Brandman’s interpretation of the rules.

(7) Houston was wrong not to suggest that Tait probably wanted a motion to postpone indefinitely.  As the Parliamentarian, he’s supposed to know these things and to help them out of this sort of trouble.  Of course, his opinion is (barring some other city rule) only advisory to the Chair — and if the Chair ever wants to reject his ruling he can do so so long as they don’t have 2/3 to override him.  (In other words, so long as Vanderbilt is present and agrees with him.)

(8) Murray was wrong that it was too late for Vanderbilt to ask a question.  Again, some questions would have been out of order, but ones that didn’t involve debating the merits of the main or precedential motion would not have been.  She didn’t know which it was; neither do we even now.

(9) Houston was wrong to reject Vanderbilt’s attempt to ask a question.  Again, it may be that he was right that the question was inappropriate, but he didn’t know that yet.  And without knowing whether he intended to engage in debate, his answer that “a motion to table is not debatable” is a non-sequitur.  And, again, it was within Tait’s discretion as Chair to decide that Vanderbilt would be allowed to state his question; he doesn’t have to defer to Houston’s decision (and in this case, not deferring would have been a good decision.

So that’s the “Motion to Postpone Indefinitely,” everyone — Chapter 11 in your Roberts Rules of Order, Newly Revised (11th Ed.)  It’s worth knowing!  It is “a motion that the assembly declines to take a position on the main question.  Its adoption kills the main motion (for the duration of the session) and avoids a direct vote on the question.  It is useful in disposing of a badly chosen main motion that cannot either be adopted or expressly rejected without possibly undesirable consequences.”  To make it, one must have the floor.  It requires a second.  It is debatable and debate over the motion may go to the main question.  It requires a majority vote.  It can be reconsidered during the session, meaning that someone vote to approve it is not necessarily irrevocable.  And while it is not amendable, it is the lowest ranked motion that is appropriate when a main motion is being considered, so a new motion (to, for example, postpone to a date certain) can be made — and can knock it out of the box.

[2] Brandman Calls the Question Until He is Red in the Face

We begin here — and we’re going to learn some things about the prerogatives of the Chair.  And — except for those of us who enjoy parliamentary procedure — be warned that this is really, really dry.  Bring hydration, ye who enter here.

BRANDMAN (2:11:14): I would like to reiterate, I am voting NO tonight.  Also like to make it very clear that Council Member Kring, Council Member Eastman, and myself did NOT vote for a tax to be placed on the Ballot.  Measure N was NOT a Tax, and to classify it as a tax is just not truthful.  And with that, I call the question. I’m ready to vote. Call the question.

TAIT (2:11:48): Okay, I’m going to respond to that, I’m going to say that it was a tax.

BRANDMAN (2:11:51) (interrupting): I called the question. I called the question.

TAIT (2:11:55): That doesn’t — Okay, you called the question.

BRANDMAN (2:11:58) (interrupting): I’ve called the question.  Mr. City Attorney, I’ve called the question.

TAIT (2:12:00): That doesn’t mean we have to vote…. No, it does not.

BRANDMAN (2:12:02): I called the question.

TAIT (2:12:05): Okay, you called the question; that doesn’t mean you end debate.  The reason we had a vote on Measure N —

BRANDMAN (2:12:12) (interrupting): I called the question.

TAIT (2:12:13): The reason we had a vote on Measure N, was — because it was a tax.

BRANDMAN (2:12:15) (interrupting): Called the question.

TAIT (2:12:16): Doesn’t matter.

(Emphasis added throughout.)  You really have to watch the video to see and hear how worked up Brandman gets about his demanding to get in the last word in the debate over whether Measure N was a tax.  This pretty much telegraphs how much this is a sore spot for him and (presumably) Kring.  (And probably Houston as well.)

HOUSTON (2:12:18): Would you like me to weigh —

MURRAY (2:12:21):  Yes.

HOUSTON (2:12:21): — in on the procedure?

TAIT (2:12:22): Yes.

HOUSTON (2:12:22): Under our rules, a council member may move to immediately bring a question being debated to a vote, suspending further debate. The motion must be made and seconded, without interrupting one who already has the floor. A 2/3 vote is required for passage. So a motion must be made and seconded, and a second is required, and a 2/3 vote is. OK. So then we would make a vote on calling the question.

TAIT (2:12:44): OK, I said what I had to say anyway.  So, all right. We have a motion, a second. Jordan, Council Member Brandman, moved to call the question, to end debate, second by Council Member Kring, to end debate on putting this on the ballot that will change our Charter, for a good long time. All right, please vote.

CLERK: (2:13:11): The vote is 3 Ayes, two Noes, by Council Member Vanderbilt, and Mayor Tait. The motion fails.

(Note: The screen said that the motion “passed,” given the majority vote, but it failed because it needed 2/3.  Good catch by the alert Acting Clerk!)

City Attorney Houston leaves something pretty important out of his discussion of what happens when someone tries to cut off debate: The Chair has the right to rule on whether a given motion is in order.  In this case, Brandman would normally have the right to have said the following without giving Tait the ability to rebut him.

[I’d] like to make it very clear that Council Member Kring, Council Member Eastman, and myself did NOT vote for a tax to be placed on the Ballot.  Measure N was NOT a Tax….  And with that, I call the question.

First, we should all agree that making such an accusation and then calling the question is, in technical parliamentary terms, “chickenshit.”  Even if the motion were in order, Tait had the right to seek information (sometimes called a “point of information”) prior to the vote.  He could not engage in debate on the merits, but asking questions of the City Attorney starting with “Was this a tax?” and “Then why did you call it a tax?” and expanding through “When you say it was not a tax, why do you reject the specific objection that ______?” can have much the same effect.  At some point, a member could call for the orders of the day (essentially “let’s move along already”) and if Tait ruled that he was within his rights to continue, only an appeal of that decision (which requires a 2/3 vote) could make him stop against his will.

(We’ll get into the “Was Measure N a Tax?” question tomorrow; if you’re interested before then, you’re mostly weighing the argument presented here that is was a tax with the argument presented here that it was merely a “General Fund Transfer on electric and water rates.”  I haven’t yet research whether such a maneuver constitutes a “tax,” but I do have my suspicions about whether it does.)

In this case, however, Tait didn’t have to go through such contortions.  See those red ellipses?  That’s where Brandman said “to classify it as a tax is just not truthful.”  In other words, he just called Tait — who had just “classified it as a tax,” a liar.  Under those circumstances, Tait very likely had a right to respond to an attack on his character as a matter of personal privilege.  (Note that Houston’s explanation is highly unhelpful in that regard, in that it states only the rule and not the exception.)

So, was Brandman right — after saying twice that he was calling the question, and then shouting it seven more times —while interrupting Tait four times — to say that, because he had called the question, Tait had to stop talking?  Without the breach of decorum created with the character attack, it would be a tough call.  With the breach of decorum, he was clearly in the wrong.  Brandman could and should have raised a point of order and allowed Tait to rule on it, at which point he could have challenged that ruling.

But this is where parliamentary procedure proves itself inadequate to say what a member of a legislative body should do.  Even if Brandman could do what he did, it was a bad move — because, in addition to being chickenshit, all he did was call attention to the question to the point.  As a result, some of us who might have overlooked it ended up paying close attention.  The final lesson of the day: knowledge of procedure does not always impart wisdom about how to employ it.


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)