City Council member’s removal from office violated his procedural due process protections

by Gary Taylor

Burke v. City Council of City of Lansing
Iowa Court of Appeals, February 22, 2017

Members of the Lansing City Council voted to remove city council member William Burke from office for claimed violations of our open meetings law (OML).  On one occasion the council issued an agenda for a closed session “to discuss strategy in matters that are presently in litigation or where litigation is imminent.”  After the agenda was issued, the city clerk requested an opinion from the Lansing city attorney as to whether the two topics she understood to be up for discussion actually qualified for closed session under the OML.  The city attorney opined that the topics did not, in fact, qualify for closed session.  The clerk forwarded the memo to the city council members, including Burke.  Burke notified the clerk that he disagreed with the clerk’s characterization of the purposes of the meeting as the clerk had reported them to the city attorney.  When the scheduled meeting was held the council voted 2-1 to go into closed session, with Burke being one of the two council members to vote in favor.  Later, the council held another special meeting on an unrelated matter.  Twenty-four-hour notice was not given.

Tensions between the council and residents resulted in an investigation by the Allamakee County attorney into the council’s actions.  The county attorney filed a petition alleging the two meetings violated the OML.  The attorney retained to represent the council and its members concluded the county attorney had “made some legitimate allegations,” and predicted fines, costs and attorney’s fees will likely be assessed against each council member.  The attorney set forth a potential settlement strategy she had discussed with the county attorney that would require Burke to resign from the council in exchange for dismissal of the lawsuit.  After a closed session of the council which Burke did not attend, the mayor petitioned the council to remove Burke from office for “willful misconduct and maladministration in office” in his handling of several matters relating to OML which resulted in litigation against the city and members of the council.  After a special meeting, the council voted 4-0 to remove Burke from office (Burke abstained from the vote).  Thereafter Burke challenged his removal in district court, raising several issues with the council’s proceedings.  The district court denied Burke’s petition, and Burke appealed.  The sole issue considered by the Court of Appeals was procedural due process.

Burke argued that the removal proceeding was fundamentally unfair because each member of the council who voted on his removal had a pecuniary conflict of interest in deciding his fate, and the “council itself generated the factual record necessary to sustain its decision, which perpetuates its conflict of interest.”  The Court of Appeals determined that Burke did not receive a “fair trial in a fair tribunal” as required by the Constitution.  The council members understood that they would eliminate their own financial exposure for possible violations of the OML if they removed Burke.  Furthermore, the council combined the prosecutorial function (by authorizing initiation of the removal process) with the adjudicative function (by presenting their own witness testimony to document their own personal knowledge of the grounds for removal).

Because the removal proceeding violated Burke’s right to procedural due process, the Court of Appeals sided with Burke and reversed the order of the district court.

 

 

Competing bid submitted by council member, but withdrawn before vote, does not give rise to conflict of interest

by Victoria Heldt

Eldon Bugg v. City of Boonville
(Missouri Court of Appeals, April 24, 2012)

In July 2010, the City of Boonville city council held a regular meeting at which the agenda included voting on Bill 2010-015.  This bill was to approve the Kemper Village Homes Project plan site and its developer agreements.  The council held a discussion about the project where fourteen members of the community (including Bugg) spoke in opposition to it and four members spoke in favor of it.  Councilman Hombs addressed the rumors of his conflict of interest, stating that he had previously submitted a bid for the development of the project, but that he had since withdrawn the bid and no longer had any financial interest in it.  After discussion, the council voted on the matter and was evenly split with four members voting to approve and four members voting to deny.  The mayor was called to break the tie and voted in favor of the project.  The bill was signed and Boonville City Ordinance 4216 was enacted.  Bugg filed suit in trial court arguing that the mayor was not allowed to break the tie and that Councilman Hombs did have a conflict of interest.  The trial court disagreed and ruled in favor of the City.  Bugg appealed.

Bugg first argued the ordinance’s invalidity on the grounds that the bill did not receive a majority vote from the city council.  Missouri statute §77.080 provides that no ordinance shall be passed except by a bill that receives a majority vote from the council.  Missouri statute §77.250 provides that, in the event of a tie vote, the mayor is required to cast the deciding vote so long as he/she does not have a conflict of interest.  Both parties acknowledged the existence of these two statutes, but each had a different interpretation.  Bugg argued that a tie-breaking vote is only necessary when the voting process fails to result in a decision.  He reasoned that a tie equated to a failure to pass, which is, in itself, a decision.  He therefore asserted that no additional vote was necessary.  He based his argument on the ruling in Merriam v. Chicago, Rock Island & Pacific Railway Co., in which a similar tie-breaking situation took place.  In Merriam, the Court ultimately decided that the president of the council (who cast the deciding vote) was not allowed to vote since he was not technically a member of the council.

The Court rejected this argument, noting that Merriam was decided over 100 years ago and has not been cited since.  In addition, it is inconsistent with rulings that have since been decided that pertain to the statute.  The Court also noted that the rules governing such voting processes were different during the time Merriam was decided.  The Court concluded that statute § 77.250 makes the mayor a temporary member of the council for the purpose of breaking ties.  In this case, the Mayor was acting within her duty to break the tie.  Therefore, the bill was validly passed by the council.

Bugg’s second argument was that Councilman Hombs still had a conflict of interest in the matter regardless of the fact that he withdrew his bid for development of the project before the vote.  The language of the council code reads that “every member who shall be present when a question is stated by the chair shall vote thereupon, unless excused by the council, or unless he is prohibited by section 2-108 of this Code, in which case he shall not vote.”  Section 2-108 of the code contains language restricting a council member with a conflict of interest from voting.  Bugg argued that Homb’s submission of a bid created an irreversible conflict of interest and that he should be precluded from voting on the matter.  The Court disagreed, noting the code requires all council members to be free from a conflict of interest “when the question is stated by the chair.”  In this case, Hombs did not have a conflict of interest when the matter was subjected to a vote.  Bugg next argued that Hombs failed to comply with the Code when he did not “file a written report of the nature of the interest.”  The Court concluded that, since no conflict of interest existed at the time of the vote, Hombs was not required to file any such report detailing a then non-existent conflict of interest.  The Court affirmed the trial court’s decision in favor of the City of Boonville.  Ordinance 4216 was upheld.

US Supreme Court to hear land use conflict of interest case

The U.S. Supreme Court is scheduled to hear oral arguments on April 27 on a conflict of interest case originating in Sparks, Nevada, where a city councilman voted on a proposed casino that his campaign manager helped develop.  The Nevada Ethics Commission said the councilman had a clear conflict of interest, and should have recused himself, even though the Sparks city attorney told him that casting his vote would be acceptable as long as he publicly disclosed his relationship with the developer.  The case focuses on the councilman’s free speech rights.

The question as presented on the U.S. Supreme Court docket is here.  A USA Today article on the case can be found here.  A recent editorial from the Sparks Tribune is here.

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