Wednesday, September 14, 2011

Enough Already

If I were reviewing last night's commission meeting as a book or more likely a TV "reality" show, I would have dismissed it as straining belief. But proving that truth is stranger than fiction, it did happen. Here's what.

As you know, Dr. Vogel has been absent for some time from the commission meetings due to his declining health. He has missed the last three regular commission meetings - June, July and August 2011. Since last night would have been the fourth consecutive regular commission meeting, Section 3.07 of the City Charter kicks in. This states that unless the commission by majority vote excuses the absences, the commissioner in question has forfeited his office, meaning he is off the commission.

Dr. Vogel made a request for a special accommodation that would allow him to attend by phone. State law requires a physical quorum (majority of members must be physically present) for a meeting to be valid. There are two Attorney General opinions which state that if the board procedures allow, exceptions can be made for extraordinary circumstances, typically health related.

The opinion is stated in the AG opinion 2003-41. It should be open and shut except that our charter requires that changes to the commission procedures be approved by resolution. And current commission procedures require physical presence.

The city attorney, from what I gather, provided the correct advice that this is permissible under state law but never provided an opinion on whether this was permissible under commission regulations. They should have.

And certainly such an extraordinary move should have been put on the agenda for a commission vote. It was not.

When the commissioners arrived, the communications link had been set up to Dr. Vogel. There had been no commission discussion of the circumstances, no resolution put on the agenda to allow the procedural change and as far as I know, no prior discussion.

Commissioner Rodriguez arrived, saw the setup and left. I have not spoken with him - he hasn't returned my calls - so I don't know his reason but I assume he was unwilling to participate at that point.

The mayor delayed the opening of the meeting while she discussed the issue with the city manager and the city attorney. The meeting began at 8:03, after routine presentations, one item was considered - a technical change to our five year plan - and the mayor left. There was no longer quorum and the meeting could not continue.

It was
a goat rope as a good former Marine friend of mine says. Well that's the clean version.

If Dr. Vogel is to continue on the commission and accommodation needs to be made, the commission should follow the law scrupulously, ensuring that the commission approves the accommodation and ensures that basic rules are in place - e.g. that the person on the phone is who he says he is, that the remote participant provide indicators of presence. I would go so far as to ask for an affidavit from all persons present with the remote attendee. The potential for abuse is high. We have already seen the manipulation of Dr. Vogel when he is present.

The city attorney should have provided a full opinion to the commissioners including the laws of North Bay Village.

The city clerk to whom I understand the request was addressed should have with the city manager prepared a resolution or called a special meeting to ensure that the commission would make the decisions as to how this extraordinary accommodation should be handled.

When this didn't happen, Dr. Vogel as the longest serving member of the commission should have brought this forward himself. But we know he is not well enough to do so.

The four present at the quorum should have held a vote to decide how to proceed and if deadlocked, so be it.

But hindsight is 20/20 vision as the saying goes.

The city attorney, clerk, manager and the commissioners did not do what they should have.

How do we go forward? I don't think we can. Since there is no resolution allowing remote attendance at the meetings, I suspect Dr. Vogel is no longer on the commission.

Can Eddie, Connie, Corina and Frank pull this together and pass a budget next week? I hope so but I'm kind of doubting it. What I would like to see now is for the commission, all of them, to get together and hammer this out.

The City Attorney should prepare a full opinion including all the laws that are affected by this, including our local laws, and clearly lay out areas of conflict, definite and potential.

The City Manager should prepare a resolution for the commission that would specifically allow such participation if the commission approves with significant and serious safeguards against abuse.

The commission should discuss and vote on how they want to proceed.

Any bets from any that will happen?

I didn't think so.

Kevin Vericker
September 14, 2011

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