Can the Haines Borough Mayor vote in a meeting without presiding over it as chair?
Mayor Jan Hill did that on Dec. 29, casting two important tie-breaking votes after turning over the chair to deputy Mayor Diana Lapham. Assembly member Margaret Friedenauer said she looked into it and doesn’t believe anything illegal occurred.
Lapham chaired the meeting at the request of Hill, who said she was on medication for a leg injury and didn’t feel up to it, although she felt well enough to attend and vote on matters.
Friedenauer said she spoke with Ryan Wilson and Lawrence Blood, two local government specialists with the Department of Commerce, Community and Economic Development’s Division of Community and Regional Affairs. Their interpretation was that the situation was unusual, but not illegal.
“I agree with his interpretation and never felt like what happened at the Dec. 29 meeting was improper, but I did field questions from some members of the community about it. I wanted to address those concerns at the meeting before they festered,” Friedenauer said.
Friedenauer said the government specialist cited a portion of state statute that says, “To the extent otherwise permitted by law, a governing body may determine by ordinance its own rules of procedure and order of business.”
“He said, in his interpretation, since the specific situation wasn’t in code or ordinance then the situation (as I explained it) is permissible – there isn’t anything in state statute that would limit the ability of the Mayor to vote during times in which she isn’t acting as the ‘ceremonial head’ of the assembly meeting,” Friedenauer said.
Resident Mike Denker disagreed. When Hill was present but Lapham was acting as deputy Mayor, Hill should not have been allowed to vote, he said. According to code, “The Mayor shall designate one assembly member as deputy mayor. In the temporary absence or disability of the Mayor, the deputy Mayor shall exercise all the powers of the Mayor and may also vote.”
Denker put the emphasis on “shall” and “all.”
“The Mayor is powerless during assembly meetings when absent as per the code because all power has essentially been transferred to the deputy mayor,” he said.
“We are failing as a community to follow these rules when it comes to government power. We seem intent on broadly interpreting the code to allow elected officials to assume powers that are beyond that which our code allows,” he said.
The Mayor should also not be allowed to vote telephonically, Denker said. In September, Hill broke a tie to pass the controversial minor offenses ordinance that was later repealed. She also called in to last week’s meeting, though no ties required her vote.
According to code, there are two allowances for attending by teleconference: to establish a quorum (which doesn’t require the Mayor) and to allow attendance by an absent assembly member at the member’s request. Code also explicitly states the Mayor is not an assembly member.
“I agree that the Mayor can attend assembly meetings by teleconference like any citizen. However, I do not agree that the Mayor retains the power to participate by teleconference in matters before the assembly, or to exercise the power to vote in the case of a tie. Simply put, when absent, the deputy Mayor retains the powers of the mayor. And because only assembly members can attend by teleconference, and because ‘the Mayor is not an assembly member’ (HBC 2.10.210), I argue we misinterpret the code by allowing the Mayor to act like an assembly member.”
If the assembly or members of the public want the Mayor to be able to vote via teleconference or when she is present but not chairing a meeting, they should act to codify that power, Denker said.
“If elected officials don’t like being bound by the code, then they can draft an ordinance and allow it to be vetted by the citizens in the public process. Then, if the citizens wish the law to be changed, so be it.”