An Internal Organizational Task
Yesterday I got up early, sat my iPad on an articulated arm attached to my nightstand, and watched the first session of Portland City Council under its new form of government with councilors elected from geographical districts. If you read anything about the session, you probably know that it took multiple rounds of voting to elect a Council President.
What I want to focus on here is the reason it took so long: the City Attorney’s opinion that the Charter does not alow the Mayor to cast a tie-breaking vote in this Council election, despite being given tie-breaking authority in the Charter.
Before a second round of president voting took place, Councilor Loretta Smith asked City Attorney Robert Taylor if Mayor Keith Wilson had the authority to break the tie. When Taylor said that the council president is elected only by the council itself, Smith disagreed, arguing that she interprets the city charter to give the mayor tie-breaking power in every council vote. Smith made a motion to give the mayor the tie-breaking vote, but her motion was handily quashed by a 9-3 vote, with only Councilors Smith, Ryan and Clark voting yes. Avalos called Smith’s objection “totally inappropriate” and against “the spirit” of the charter reform measure. Councilor Angelita Morillo said she felt “a little bit ambushed” by Smith’s last-minute motion.
OPB:
Mayor Keith Wilson is able to cast tie-breaking votes on city council matters, but city attorneys said that policy doesn’t apply to a council president vote.
Councilor Loretta Smith initially pushed her colleagues to give Wilson the power to break the tie. When they did not agree, she nominated Pirtle-Guiney as an alternative third option, and Pirtle-Guiney collected all of what had been Clark’s votes by the fifth round. After several hours and multiple recesses, the deadlock was eventually split by Councilor Mitch Green, who switched his vote from Avalos to Pirtle-Guiney.
Meanwhile, the mayor won’t have veto power and will only cast a vote to break a tie — except in the case of electing a council president, City Attorney Robert Taylor told council members Thursday. The council had to do that on its own, a tough task given its even numbered membership and even divide between progressive and more traditionally liberal blocs.
KGW:
The initial vote was a tie between Avalos and Councilor Olivia Clark from District 4. After the initial 6-6 vote, Councilor Loretta Smith from District 1 suggested having Mayor Keith Wilson break the tie, but that idea drew objections from other councilors and the city attorney.
“I’ve been told by everybody here that we want to work together and kumbaya and be in good faith and now I feel a little bit ambushed by this decision, if I can be very frank,” Morillo said.
The new city charter allows the mayor to serve as a tiebreaker if the council deadlocks, but only for votes on policy. Smith disputed that interpretation of the charter proposed changing the rules to give Wilson a tiebreaker for council leadership votes as well, but the motion was voted down 9-3.
“I think it’s completely inappropriate to try to adjust the rules in any way to have the mayor have a say on who our leaders are,” Avalos said.
Throughout the session as I live-posted it on social media, I periodically returned to this issue of what the Charter says about mayoral powers in the specific case of election a Council President. The analysis by the City Attorney wasn’t entirely clear to me from his statements, unhelped by the fact that anything he said was countered by Councilor Smith simply stating that the Charter was clear.
So I spent a little time looking at the Charter, and as near as could tell, donning the layman analysis hat I used to wear a lot during my Portland Communique days, the City Attorney likely was combining “the Council shall elect a President” (Chapter 2 Government Article I The Council Section 2-110 Organization) together with “The Mayor is not a member of Council” (Chapter 2 Government Article I The Council Section 2-102 City Council) to be read as the election of President to be an internal organizational decision outside the purview of the mayoral tie-breaker.
This was further reinforced for me by a look at the Council agenda for the session, where the election of President was not in the form of an ordinance. In my reading, this made the election not a matter “before the Council”, the language used in relation to the mayoral tie-breaker (Chapter 2 Government Article 4 The Mayor Section 2-401 Duties).
In addition to Councilor Smith’s argument to the contrary, social media replies to me suggested two things: that people making the determination of the City Attorney were doing so on “feels”, because no reading of the Charter supported it; and that the determination of the City Attorney ran contrary to “what voters were repeatedly told” about the mayoral tie-breaker and there wasn’t “some weird sets of magical exceptions”.
Last night I emailed the City Attorney seeking a copy of the document he had produced at the Council session, because it wasn’t at that point up on the agenda page. They emailed this morning indicating it had been posted (pdf), and it plainly undermines the counter-arguments.
I’d note a victory for my layman hat, as the determination memo literally describes the Council’s election of its own President as an “internal organizational” task, precisely what I’d been arguing yesterday.
In addition, the memo details how the ballot title and the Charter commission’s report (things I didn’t have the spoons to look at) both specify that the mayoral tie-breaker entails only to “non-emergency ordinances”. The election of Council President, separated out into Chapter 2 Government Article I The Council Section 2-110 Organization, being an internal organizational matter does not come in the form of an ordinance. The mayoral tie-breaker, then, does not apply.
Councilor Smith was wrong, and I can only assume her move was based on an assumption that when faced with the choice between a District 4 councilor backed by the Portland Business Alliance and a District 1 councilor invested in distributing power, Mayor Keith Wilson would have backed the former over the latter. Seen in this light, it’s especially galling and cynical that Smith later decried the lack of attention and resources the city pays East Portland—the very part of town from which Councilor Avalos stems, and about which the Portland Business Alliance couldn’t care less.
This wasn’t “feels”, and it didn’t contravene what voters were told, presuming that voters read what was presented to them in materials such as the actual damned ballot title.
(Besides all of which, it would be ludicrous on its face for any legislative branch to allow the chief executive any role whatsoever in choosing its own leadership.)
In the end, what will matter for district representation when it comes to the agenda-setting powers of the Council President are the rules under which the President can act and those under which other councilors can get items into the Council agenda. Council Pirtle-Guiney (from right here in the Thumb) likely will be a perfectly fine president, and Councilor Kanal (from right here in the Thumb) seems laser focused on seeking a fair balance in the rules.
That said, this was a missed opportunity to send a bold signal both substantive and symbolic that the new district system is shifting the power away from the old guard.
Addenda
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In my haste this midday, I forgot to mention one part of what the “feels” replier also was arguing: a legal doctrine called lex specialis. (I love when people introduced new-to-me legal concepts.) To quote Wikipedia: “if two laws govern the same factual situation, a law governing a specific subject matter […] overrides a law governing only general matters”. This makes sense to me on its face.
However, I think the City Attorney position, if I can extrapolate from the determination memo, likely would be that we aren’t discussing “the same factual situation”, in that one situation is the internal organization of the legislative branch, whereas the other situation is the mayoral tie-breaker on actual legislation.