Fresno City Council Member Clint Olivier wasn’t feeling well, so he left the Dec. 17 council meeting before it ended.
As Olivier left, he told City Clerk Yvonne Spence to put him down as a “yes” vote on two agenda items the council had yet to hear. When those items came up, Olivier’s vote was recorded, though he was absent during the debate, and though one of the items was changed by council members after his departure.
In the past, they would have been missed votes. Now, Olivier will be credited with casting votes on the two issues.
This twist of representative democracy is new to the Fresno City Council and, apparently, elsewhere. Experts say they’ve heard of proxy voting and a past state Assembly practice of “ghost voting” in which members not in attendance cast votes, but nothing like what has been done by three council members in recent weeks.
“I am stunned,” said Melissa Michelson, a political science professor at Menlo College in the Bay Area. “This seems wildly inappropriate and not what voters have in mind when they elect (council members) to vote on their behalf.”
But while it may be inappropriate, it apparently isn’t illegal.
Fresno City Attorney Doug Sloan is drawing up an agenda item to officially sanction the practice. Council members will take up the matter next month, though its passage isn’t certain. Three members are supportive, one isn’t and two are on the fence.
“It is unusual for us and we did research it,” Sloan said. “Nothing said it is prohibited.”
Two open-government experts agreed, though one said such a practice violates the spirit of the state’s Brown Act, which guarantees the public’s right to participate in government meetings.
Peter Scheer, executive director of the First Amendment Coalition, a nonprofit dedicated to advancing free speech and open government, said there “isn’t anything in the law that expressly prohibits” the practice. But, he added, the issue isn’t that simple.
The Brown Act, he said, gives the public the right to attend open meetings and to give their thoughts and opinions to council members. If a council member is absent and has already voted on an issue, the member would not be present to hear the thoughts of a constituent.
“Council members have the benefit of written materials provided in advance, but one thing they do not have is the benefit of the public’s participation,” Scheer said. “While some of them may well feel they do not need or will not benefit from that because they have already made up their mind on an issue, the law is designed to create an opportunity for members of the public to try and change their minds.”
Sloan said he anticipates the rules will let a council member, during an open council session, register a vote on an item that has not yet been heard. It will apply for any “straight-up legislative matters,” he said, but will not be allowed in quasi-judicial matters the council hears such as conditional use permit or rezoning hearings where a decision is based on testimony given. Another caveat will prohibit a council member to register a vote ahead of time if another council member objects.
If the idea is approved, Scheer said minutes from the meeting should reflect any votes taken without the presence of a member so it can be tabulated by members of the public – or a potential political opponent – in the same way missing votes can be tracked. If a council member is voting but skipping out on large portions of meetings, Scheer said, it could be a campaign issue.
Council members weigh in
Three council members say they are generally supportive of the change.
Paul Caprioglio, who will take over as council president in January, said there are “extenuating circumstances where you can’t be present for whatever reason. Rather than not vote or participate, this would allow you to cast a vote. … If it can help us with our duties and makes us more effective, let’s do it.”
That said, Caprioglio is assuming a council colleague who leaves and casts a vote has done the proper research ahead of time, such as reading the staff report.
Outgoing Council President Oliver Baines also is supportive, and said he’s confident his fellow members would only use it sparingly.
“I can’t see any council members, myself included, making that a normal practice,” he said.
Council Member Steve Brandau, who was the first to register a vote and leave when he became sick during a meeting a few weeks ago, isn’t so sure. Like Baines and Caprioglio, he’s supportive of putting the practice into policy, but will be watching to see whether the new rule is abused. If it is, he said, he will push to overturn the new rule and put a new one in its place that forbids the practice.
On the other side is Council Member Lee Brand, who is in his final year on the council and is running for mayor. He doesn’t approve of the practice. “It’s not good; it’s a bad precedent,” he said.
Brand said that in his seven years on the council, he’s changed his mind on the dais several times after hearing public comment on an issue.
In between are Council Members Olivier and Sal Quintero, who like Brandau have registered votes and then left a council meeting.
Olivier said he sees both sides of the issue.
“I’m anxious to see this coming up on the agenda and looking forward to hearing what my colleagues have to say about it, and we’ll go from there,” he said.
Quintero registered one “absentee” vote during the Dec. 17 meeting, but didn’t on other items. The item Quintero voted ahead of time on was something he felt was not controversial – tightening conditional use provisions on liquor stores as part of the city’s new development code.
If the council officially approves the practice, Quintero said his major concern is members skipping out on controversial votes or votes where they may take heat from the public.
“It’s really important to listen to what the public has to say,” Quintero said. “That’s why you’re elected – to listen and vote.”
He added approval of the practice would “set a precedent for future councils, and I don’t know if that’s a good thing.”
Council Member Esmeralda Soria couldn’t be reached for comment.
What if an item changes?
Beyond ducking criticism or simply looking to avoid sitting through a boring agenda item, critics also wonder what happens when a council member records a vote, leaves – and then the item is amended.
That is just what happened on one of Olivier’s Dec. 17 votes. The city had $7.9 million in leftover cash from the fiscal year that ended June 30, and Mayor Ashley Swearengin’s administration had put together a spending plan for the money. Olivier’s vote on the plan was “yes.” But during debate, the council took $400,000 proposed for repairs to the spiral parking garage at Van Ness and Inyo avenues, and another at Van Ness and Merced Street, and instead put it in a fund for infrastructure repair such as filling potholes, fixing sidewalks, repairing street lights or trimming trees.
Quintero, who left early at the same meeting, said he chose not to register a vote ahead of time on that agenda item because he sensed it could be controversial, heavily debated – and possibly changed.
From a legal standpoint, Sloan said the law says council members do not have to give a reason for a vote and can base a vote on any information they have.
Scheer also pointed out there are examples of elected members of legislative bodies all over the state who fall asleep during meetings, not to mention those who read, check their cellphones or simply don’t pay attention during debate or public testimony on an item.
“The law doesn’t say you have to wake them up,” he said of sleeping elected officials.
Casting a vote on an item and then leaving a council meeting before public comment or questioning of staff members who wrote a report on the issue in question really isn’t any different, Scheer said.
But it still rubs people like Michelson, the Menlo College political science professor, the wrong way.
“You signed up to be on council and that means you are supposed to be present in case there is information presented that changes your mind,” she said. Voting ahead of time on an issue and leaving “may not be illegal, but it is wrong. It is violating the public’s trust.”
Terry Francke, an open-government expert and general counsel of Californians Aware, a public interest group that lobbies for open records and open government, said this is often the way in the world of politics.
“I’ve never heard ethics applied to pure politics,” he said. “There are all kinds of things done all the time at all different levels that wouldn’t pass a strict ethics test. That’s the nature of the political beast.”