SUMMARY LEGAL OPINION Year 200708 To Council Member Michael R Gareau - PDF document

1 SUMMARY LEGAL OPINION (Year 2007-08) To:
SUMMARY LEGAL OPINION (Year 2007-08) To: Council Member Michael R. Gareau, Jr. From: James M. Dubelko, Director of Law Cc: President and All Members of Council; Mayor O'Grady; Director of Finance Copfer; and Clerk of Council Seman Re: Written Communications as Part of the Council RecordDate: September 27, 2007 _____________________________________________________________________ I have before me your September 19, 2007 request for legal advice regarding the above-referenced subject. Specifically, you have inquired: "Does one member of Council have the right to make a matter a part of the record without reading the matter into the record or requesting that the matter be included in the record by vote of Council. In other words, does the default become anything desired in the minutes as a matter of record and included in the minutes." Facts This request arises out of an event that occurred at the September 18, 2007 regular Council meeting. Toward the end of the meeting, Council Member Ryan requested that a written communication that he authored and delivered to the Clerk of Council be attached to the minutes as a communication. Council Member Gareau requested that the communication be read into the record and then formally moved to not include the communication in the record unless it was read. While the matter was being debated, Council Member Ryan moved to adjourn the Council meeting. The motion to adjourn was adopted by a 4-3 vote and the meeting was adjourned without resolution of Council Member Gareau’s motion. Discussion In addition to addressing the request of Council Member Gareau, this opinion is also intended to provide guidance to the Clerk of Council in preparing draft minutes of the September 18, 2007 Council meeting for the approval of Council at the October 2, 2007 Council meeting. Memorandum to Council Member Michael R. Gareau, Jr.From James M. Dubelko, Director of Law Subject: Written Communications as Part of the Council Record Dtd: September 27, 2007 The subject of this request for a legal opinion, in my view, implicates Council’s obligation, under the City Charter and the laws of Ohio, to conduct open meetings, and the concomitant obligation of Council to thereafter create, approve and keep minutes that accurately summarize the proceedings of its open meetings. In addition, the request requires that a review be conducted of the Rules of Council that establish the procedures for addressing the various matters that arise at Council meetings. Patterned after ORC Section 121.22, Article XV of the Charter requires all meetings of Council (wi

2 th limited exceptions not relevant here)
th limited exceptions not relevant here) to be open to the public at all times. The requirement that a public meeting be “open” includes concomitant obligations to provide advance notice of the meeting to the public and, after the meeting has concluded, to prepare, approve and maintain full and accurate minutes that contain sufficient facts and information to permit the public to understand and appreciate the rationale behind the actions taken at the public meeting. In addition to the open meeting law obligations above discussed, Article IV of the Charter requires that Council adopt "rules, regulations or bylaws" and that it conduct its proceedings in accordance with such adopted rules, regulations or bylaws. Historically, each new City Council has adopted Rules by motion at its January organizational meeting. There are 66 rules of procedure in the Rules of the current Council. None of these rules specifically provides for written communications to be made a part of the minutes (or record) of a Council meeting; nor do any of the rules specifically provide for the reading of written communications into the record, despite an apparent tradition on the part of the Clerk of Council to do so when so requested by persons submitting written communications to her. The foregoing tradition notwithstanding, Council Rule 63 states that, in the absence of a specific Council rule establishing a procedure for a matter before Council, Robert’s Rules of Order shall govern. Rule 27(d) of Robert’s Rules provides, in relevant part, as follows: “When papers are laid before the assembly, every member has a right to have them read once. If there is a debate or amendment a member has the right to have them read again before he or she can be compelled to vote on them. Whenever a member asks for the reading of any such paper, evidently for information and not for delay, the chair should direct that it be read if no one objects. But a member does not have the right to have anything read (except as stated above) without permission of the Rule 7(G) provides that “other communications , petitions and memorials” shall be part of the agenda of all regular Council meetings. Rule 12 provides, inter alia, that the Clerk “shall have custody of and preserve other official documents, reports, papers and communications received by Council…” No other rules of Council refer to written communications received by the Clerk of Council. Memorandum to Council Member Michael R. Gareau, Jr.From James M. Dubelko, Director of Law Subject: Written Commu

3 nications as Part of the Council Record
nications as Part of the Council Record Dtd: September 27, 2007 assembly. A member who is absent when the paper under consideration was read, even though absent on duty, cannot insist on its being read again. The convenience of the assembly is more important than that of a single member.” In the absence of a specific rule of Council addressing the subject of the reading of written communications received by the Clerk of Council, this Robert’s rule is instructive and serves as a guide to resolving the issue raised in this request for a legal opinion. As the City Council, as a part of its open meeting law obligations, must ultimately determine what shall become a part of its minutes, each member of Council is entitled to request that any written communication that is proposed to be appended to the Council minutes be read before it becomes a part of the Council’s minutes. Only a majority vote by the members of Council to dispense with such reading requested may prevent the request from being honored. Legal Opinion 1. Written communications received by the Clerk of Council and reported out by the Clerk at a meeting of Council may, with the express or implied consent of the Council, be appended to the official minutes of the Council meeting. 2. If the Clerk of Council, in her discretion, elects to not read a written communication received by her and reported out to Council at a meeting of Council, any member of Council may request that the written communication be read by the Clerk at that meeting, and the communication must thereafter be read by the Clerk unless a majority of Council, by motion, objects to the reading. 3. In light of the motion to adjourn adopted by Council at its September 18, 2007 meeting which precluded the Council from either honoring Council Member Gareau’s request that the subject written communication from Council Member Ryan be read into the record, or formally objecting to the reading by a motion adopted by a majority of the members of Council, the written communication of Council Member Ryan should not be appended to the draft of the minutes of the September 18 Council meeting to be submitted to Council by the Clerk of Council, and the question of whether the said written communication should be ultimately appended to the minutes of the September 18 meeting should be addressed and resolved at the October 2, 2007 regular Council meeting. I trust that this constitutes an full and satisfactory response to your request for legal advice in this matter. If it does not, or if you have additional questions, please do not hesitate to contact me. jm