Abstentions and Disqualifications
The Rule of Necessity (Legally Required Participation)
Various, often differing voting requirements apply to actions that city councils may take. To ensure the validity of city council votes, it is important to understand and abide by these different legislative thresholds.
To conduct a meeting, a quorum of members of a body is necessary. A quorum is defined as the minimum number of members of the body who must be present for business to be legally transacted. Government Code section 36810 provides that when a quorum is not established the, “majority may adjourn from time to time and compel attendance of absent members in the manner and under the penalties prescribed by ordinance.” For example, most California cities consist of five-member city councils. Accordingly, at least three council members must be present to conduct legislative business. If all members are absent from the council meeting, “the city clerk shall declare the meeting adjourned to a stated day and hour.” (Gov. Code, § 36811.)
It is also important to maintain a quorum throughout the meeting to ensure the validity of actions taken. A quorum can be lost when a member leaves the meeting or temporarily leaves the dais.
Resolutions, Orders for the Payment of Money and Ordinances
Government Code section 36936 provides as follows:
“Resolutions, orders for the payment of money and all ordinances require a recorded majority vote of the total membership of the city council.”
Despite the general rule that a majority of a quorum can approve a motion (e.g. two members of a five-member legislative body vote in favor of a motion with three members present) this section mandates that at least three members of a city council must vote in the affirmative for the passage of resolutions, order for the payment of money and all ordinances. Also, under Government Code section 36935, resolutions or orders for the payment of money may only be adopted at a regular or special meeting for which notice of such special meeting specifies the business to be transacted. Pursuant to Government Code section 36934, ordinances must be introduced at one meeting and then passed, or adopted, at a second meeting held at least five days thereafter, procedurally referred to as a “first reading” and “second reading.” The latter adoption of an ordinance may only occur at regular or an adjourned regular meeting.
General Plan and Specific Plan
Pursuant to Government Code section 65356, general plans must be adopted and amended by resolution, which shall be adopted by an affirmative vote of not less than a majority of the total membership of the city council. With respect to charter cities, the planning commission may adopt general plans adopted or amended by resolution, if the charter so provides. Specific plans shall be prepared, adopted and amended in the same manner as a general plan. Yet, a specific plan may be adopted by resolution or by ordinance and may be amended as often as deemed necessary by the legislative body. (Gov. Code, § 65453.) Moreover, a specific plan may be repealed under the same manner it is required to be amended.
Urgency ordinances may only be passed by a four-fifths vote of the city council. Government Code section 36937(b) defines an urgency ordinance as an ordinance, “for the immediate preservation of the public peace, health or safety, containing a declaration of the facts constituting the urgency.” Similarly, interim urgency zoning ordinances (“moratoria”) require a four-fifths vote for adoption (Gov. Code, § 65858.) Such interim ordinances are only in force and effect for 45 days from its date of adoption. After notice pursuant to Government Code section 65090 and public hearing, the legislative body may extend the interim ordinance for 10 months and 15 days and subsequently for one year. Any extension shall also require a four-fifths vote for adoption. No more than two extensions may be adopted. In order to adopt or extend an interim ordinance, there must be legislative findings that there is a, “current and immediate threat to the public health, safety or welfare, and that the approval of additional subdivisions, use permits, variances, building permits or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety or welfare.” (Gov. Code, § 65858, subd. (c).)
Resolution of Necessity
Pursuant to Code of Civil Procedure sections 1245.220 and 1245.240, a resolution of necessity to initiate condemnation proceedings must be passed by a vote of two-thirds of all members of the legislative body, which in a general law city equates to four votes, unless a greater vote is required by statue, charter or ordinance.
According to the Ralph M. Brown Act, only discussion and action may be taken on an item on the agenda. Pursuant to Government Code section 54954.2 (a)(1), an agenda must be posted at least 72 hours before a regular meeting. The agenda must contain a brief general description of each item of business to be discussed, including those in closed session, that “generally not exceed 20 words.” The agenda shall also specify the time and location of the regular meeting and the location that is accessible to the public.
For discussions not appearing on the agenda, two-thirds vote of the members of the legislative body present (or a unanimous vote if less than two-thirds of the members are present) at the meeting may discuss and take action if there is both (1) the need to take action immediately; and (2) the need for action came to the attention of the agency after the agenda was posted (Gov. Code, § 54954.2, subd. (b)(2).). The legislative body may also discuss and take action if a defined statutory emergency is determined to exist by a majority vote of the legislative body. (Gov. Code, §§ 54954.2, subd. (b)(1) and 54956.5.) The legislative body may also meet in closed session for an emergency meeting if agreed to by a two-thirds vote of the members present, or if less than two-thirds of the members are present, by a unanimous vote of the members present (Gov. Code, § 54956.5, subd. (c).)
General and Special Taxes
Enactment of general taxes requires two-thirds vote of the legislative body and a majority vote of voters voting in an election on the issue. (Gov. Code, §§ 53724, subd. (b) and 53723.) For the enactment of special taxes, in addition to the two-thirds vote of the legislative body, a two-thirds vote of the voters voting in an election on that issue is required. (Gov. Code, §§ 53724, subd. (b) and 53722.)
The election to approve any tax proposed under Government Code section 53724 must be consolidated with a statewide primary election, a statewide general election or regularly scheduled local election in which all the electors are entitled to vote. Also, with respect to any special tax, they may only be used for the purpose or service for which they were imposed, and no other purpose is allowed. (Gov. Code, § 53724, subd. (e).)
Exceptions to Competitive Bidding
Contracts may be awarded without competitive bidding if the legislative body makes a finding by a four-fifths vote that an emergency exists. (Pub. Contract Code, §§ 21068 and 22050.) Under Public Contract Code section 1102, an emergency is defined as, “a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property or essential public services.” If all bids are rejected, the legislative body may pass a resolution by a four-fifths vote of its members declaring that the project can be performed more economically by day labor, or the materials or supplies furnished at a lower price in the open market. Upon adoption of the resolution, the legislative body may dispense with further public bidding. (Pub. Contract Code, § 20167.)
Surplus Sale of Property
The California Surplus Land Act requires local agencies, prior to disposing of surplus property, to offer to sell or lease that property to certain entities for specified uses, which include affordable housing, parks and recreation and for school use. (Gov. Code, § 54220 et seq.) Taking effect on January 1, 2020, Assembly Bill 1486 created new obligations before an agency disposes of surplus land. This includes, among other things, formal findings by the agency’s legislative body declaring the land as surplus, transmittal of notices of availability to designated housing sponsors and public agencies with jurisdiction over the land and good faith negotiation if entities express interest in purchasing and developing the land, including for affordable housing purposes. AB 1486 also mandated some important requirements that took into effect on January 1, 2021, which require that public agencies must, upon the conclusion of negotiations with a buyer but prior to disposing of the surplus land, report to the State Department of Housing and Community Development (HCD) a description of any notices transmitted on such land, a summary of negotiations conducted with those entities who responded to that notice and any restrictions proposed to be recorded against the property upon disposition, including affordability covenants. HCD then has thirty days to notify the agency of violations of the Act.
State law provides an optional procedure for cities to use in disposing of surplus property (Gov. Code, § 37420 et seq.) This procedure involves findings that “the public interest and convenience require the sale of any public building and site dedicated to a public use, it may adopt a resolution of its finding and intention to sell the property.” (Gov. Code § 37421). At any time prior to taking final action, any person interested may protest the proposed sale, which must be in writing and delivered to the clerk of the legislative body or at the meeting considering the resolution. (Gov. Code, § 37424.) If no protests are received or the legislative body overrules the protests, the proposed sale of the surplus property may proceed. In order to overrule the protest, four-fifths vote of its members is required. (Gov. Code, § 37425.)
Disposition of Parkland
A general law city may convert a park to a different municipal purpose. (Gov. Code, § 37111.) State law requires that when the legislative body deems it necessary that land purchased for any municipal purpose, it may adopt an ordinance by a four-fifths vote, after giving notice and conducting a public hearing, “declaring the necessity and providing that such lands can be used for other municipal purposes provided that (a) an equal or greater amount of city property has also been acquired within the previous three years and has been dedicated and has been developed or will within a reasonable period of time be developed, for similar park purposes; and (b) the proposed use of the park land conforms to the city’s general plan.
Appeal of Environmental Impact Report (EIR)
If the decision-making body is not elected, such as a planning commission, the certification of the EIR may be appealed to the elected decision-making body, the city council. An appeal from the certification of an EIR by an unelected planning commission must be decided by a majority vote of the elected governing body. On appeal, the elected board must consider and approve the EIR and make findings. A tie vote by the governing board does not certify the EIR (Vedanta Society of Southern California v. California Quartet Ltd., (2000) 84 Cal. App. 4th 517.)
Overrule an Adverse Determination of Airport Land Use Commission (ALUC)
The State Aeronautics Act provides for the orderly development of public use airports and their surrounding areas (Pub. Util. Code, §21001 et seq.) The State Aeronautics Act establishes airport land use commissions in each county to formulate a compatibility plan that addresses land use issues as well as noise and safety issues. This plan is referred to as a “land use compatibility plan.” The commissions also review plans, regulations and other actions of local agencies and airport operators.
Public Utilities Code section 21676 provides that prior to an amendment of a general or specific plan, or the adoption or approval of a zoning ordinance or building regulation within the planning boundary established by the airport land commission, the local agency has to refer the proposed action to the commission. If the commission determines that the proposed action is inconsistent with the commission’s plan, the referring agency shall be notified. The local agency may, after a public hearing, overrule the commission by a two-thirds vote of its governing body, if it makes specific findings that the proposed action is consistent with the purposes of the article as written in Public Utilities Code section 21670.
A councilmember must physically be present at a council meeting to vote on items before the council for action at that meeting. The Brown Act permits a councilmember to participate from a teleconference location. (Gov. Code, § 54953, subd. (b)(1).) If the legislative body elects to use teleconferencing, it is required to post agendas at all teleconference locations. Each teleconference location shall also be identified in the notice and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body must participate from locations within the boundaries of local agency’s jurisdiction. (Gov. Code, § 54953, subd. (b)(3).) All votes taken during the teleconferenced meeting shall be taken by roll call vote. (Gov. Code, § 54953, subd. (b)(2).)
A majority of the councilmembers present could, as a matter of courtesy, decide to continue or defer action on a particular item until a subsequent meeting in order to allow the absent councilmember to participate in the final vote on the matter. If an item before the council is continued, the absent councilmember may vote if that councilmember has reviewed the previous meeting and is otherwise informed of the issues involved in that item. Many cities have adopted procedural rules requiring that absent councilmembers desiring to vote must watch or listen to the recorded meetings, read the minutes of that meeting and all documents pertaining to that item prior to voting. Typically, councilmembers who have been absent make a statement as follows: “I was absent at the previous meeting in which this item was discussed. But, I have viewed the recorded meeting or have read the minutes and staff reports and I am prepared to participate.” In case a councilmember forgets to make such statement, a court held that the failure to make such statement was held to be technical and excusable where the record demonstrated that the members were familiar with the matter on which they were voting. (Old Santa Barbara Pier Co. v. State of California (1977) 71 Cal. App. 3d 250, 255.)
Pursuant to Government Code section 36512(b), if there is a vacancy on the council, the council must fill the vacancy by appointment or by calling a special election. If elected to fill the vacancy, the person holds office for the predecessor’s unexpired term (Gov. Code, § 36512, subd. (b)(1).) If the city council fills the vacancy by appointment during the first half of the term of office and at least 130 days prior to the next general municipal election, the appointee holds office through the next general municipal election until the person elected is qualified to hold office. (Gov. Code § 36512 subd. (b) (2) (A).) Alternatively, if the city council fills the vacancy by appointment during the first half of a term of office, but less than 130 days prior to the next general municipal election, or if the vacancy occurs in the second half of a term of office, the person appointed shall hold office for the unexpired term of the former incumbent. (Gov Code § 36512 subd. (a) (2) (B).)
Legislative body vacancies create a potential for tie vote. A single vacancy on a five-member body can lead to a tie two to two (2-2) on a particular item, which amounts to “no action,” or non-approval of the item being voted upon. Such a tie vote may result in a project being “deemed approved” under the automatic approval provisions of the Permit Streamlining Act or the Subdivision Map Act. For instance, if a planning commission makes a recommendation but do have authority to make a final decision on a tentative map, a two to two (2-2) vote by the council on a tentative may could result in the map being deemed approved, even if the planning commission had recommended denial, if the council takes no further action within a specified time. (Gov. Code § 65956, subd. (b).)
Abstentions and Disqualifications
For abstentions and disqualifications, the most important rule to remember is that when councilmembers are disqualified from voting because of a conflict of interest, they are not counted as part of the quorum. (Farwell v. Town of Los Gators (1990) 222 Cal. App. 3d 711.)
Suppose you have a five-member council and four members attend the meeting with one councilmember being absent. If two members abstain for some reason other than a conflict of interest, the motion passes. This is because a quorum is a present and a majority of the quorum votes in favor of the motion (2-0-2-1). However, if two members become disqualified due to a conflict of interest, the motion fails (2-0-0-3). The motion fails because of lack of quorum. The reason for failing to pass is because the disqualified members are not counted for purposes of quorum. Therefore, if there are only two members present who are legally qualified to take action, the council cannot consider the matter until the absent councilmember is present to constitute a quorum of three.
The Rule of Necessity (Legally Required Participation)
Government Code section 87101 states that a public official may make a governmental decision to the extent that their “participation is legally required for the action or decision to be made. The fact that an official’s vote is needed to break a tie does not make his or her participation legally required for purposes of this section.”
The Fair Political Practices Commission has adopted an administrative regulation construing the meaning of “legally required participation.” (Cal. Code Regs., tit. 2, § 18705.) When a public official who has a financial interest in a decision is legally required to make or participate in making a decision, he or shall state the existence of the potential conflict as follows:
- “disclose the existence of the conflict and particularly the nature of the economic interest.”
- “give a summary description of the circumstances under which he or she believes the conflict may arise.”
- “the legal basis for concluding that there is no alternative source of decision.”
Also, if the decision is being made in an open session of a public meeting, the disclosure must be made orally before the decision is made. If the decision is made during a closed session of a public meeting, the disclosure needs to be made orally during the open session. If the decision is being made in another manner, the disclosures need to be made in writing and made part of the official public record. A council member cannot invoke this rule merely to break a tie.
Participation by the smallest number of officials with a conflict that are “legally required” in order for a decision to be made shall be selected by lot or another impartial method (Hudson Opinion, 4 FPPC Ops. (1978).) In the Matter of Hudson, three members of a five-member board were disqualified because of a conflict. The FPPC concluded that, “allowing only one of the three disqualified members to participate means that a quorum can be achieved and a decision therefore made. But it will be a decision reached by a board that consists of two members without financial interest and only one member with such an interest.”
The best selection of a disqualified member is by random lot. Random selections include flipping coins, drawing cards, and throwing dice or having the members take turns in a predetermined order (Lungren opinion No. 95-324 (1995).) Whatever the method used, all disqualified officials must participate in the random selection process and all must have an equal likelihood of being chosen. However, the “legally required participation” exception does not require including persons barred from taking part in a decision by laws other than Government Code section 87100. For instance, in limited circumstances, “where an official is the applicant who has initiated the decision at issue, participation by this official would not further the purposes of the Act. As such, where the official is the applicant whose property is the subject of the appeal to be decided by the City Council, the official should not participate in the random selection process to obtain quorum.” (Whitham Advice Letter, No. A-19-153).
In resolving issues about voting, city councilmembers are sometimes caught between two conflicting policies. On the one hand, public officials, “should perform their duties in an impartial manner, free from bias caused by their…financial interests” (Gov. Code, § 81001, subd. (b).) On the other hand, members of public bodies have a duty to vote on issues before them, so that the public is represented and receives the services that the public bodies were created to provide. Under the present state of the law, the scales tip more readily toward disqualification. This may at times leave city councils unable to make decisions or take action on critical issues facing the community. Yet, these laws and regulations are in place to protect the public from public officials who have a conflict or may be biased.