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The following problems were presented at our Moderators' Workshops held on February 8, 1996 and February 23, 1996.The sections titled Discussion highlight the main parliamentary issues identified by the participants and suggestions for avoiding or handling these issues.
Many of the discussion sections include page references to the 1990 edition of Robert's Rules of Order Newly Revised, published by Scott, Foresman & Co.
A motion is made and seconded, and the moderator states the motion.
An amendment is offered and seconded to fund the deficit for the year ending June 30, 1994 out of fiscal year 1995 anticipated surplus funds. The amendment is approved, and the original motion, as amended, passes.
DISCUSSION: To be germane, an amendment must in some way involve the same question that is raised by the motion to which it is applied. (Robert's, page 132).The original motion asked the voters to appropriate money in the 1996 fiscal year budget to pay off a deficit incurred in the 1994 fiscal year. The amendment changes the intent of the article entirely. No longer are the voters being asked to appropriate additional revenues; they are being asked to direct the legislative body to pay off the deficit with 1995 anticipated surpluses.
Assuming there is a surplus in 1995, would this be money that has already been appropriated by the voters and not spent? If so, the legislative body already has authority to spend that appropriated $16,257 and could pay off the deficit without going back to the voters.
If the surplus comes from unanticipated revenues, those revenues will not be verified until after the end of the 1995 fiscal year. Since those revenues would never have been appropriated by the voters, they could not be spent until included in the 1997 fiscal year budget, delaying payment of the 1994 deficit another year.
The moderator should have ruled the amendment out of order as not germane.
DISCUSSION: Unless you live in a town with a governance charter that explicitly provides for the appointment of a town clerk, clerks must be elected. 17 V.S.A. § 2646(2). Asking for a division of the question would not assist the voters, because, contrary to what this article implies, the voters have no choice.The town either elects the town clerk or the charter designates what entity appoints the clerk. As moderator, what role should you play? Try to get the town to ascertain whether it elects or appoints a clerk. If yours is an "elected clerk town," ask for nominations. If it turns out to be an "appointed clerk town," suggest passing over the question since the voters have no need to authorize the select board to appoint. It already has that authority.
Discussion at the workshops focused on whether the moderator ought to advise the voters about the implications of their actions or whether the moderator's role was simply to guide the assembly through the parliamentary procedures necessary to take action on the article.
One moderator thought that the town should vote on the article, and, if the measure passed, the remedy for those who thought the action was inappropriate was in Superior Court. Other moderators felt that it was incumbent upon them to advise the assembly about the ramifications of its actions.
The discussion on appropriate articles led into a discussion on whether moderators had any input into the warning prior to its being signed and posted. Although most moderators thought that an opportunity to review the proposed warning might allow them to anticipate procedural problems unforeseen by the select board, it was clear from the conversation that there is no generally accepted practice for town moderators to review warnings.
DISCUSSION: Select board members do not need voter authorization to set the tax rate. It is granted to them by statute. 24 V.S.A. § 1521. As moderator, you might wish to suggest that the town pass over the article.
DISCUSSION: A motion to pass over might be a motion to postpone indefinitely. A motion to postpone indefinitely is not in order when another has the floor, it must be seconded, it is debatable and amendable and it is passed by majority vote.Or the motion to pass over might be a motion to object to consideration of the question, which motion is in order when another has the floor, until debate has begun or a subsidiary motion has been stated by the moderator. An objection to consideration does not need a second, is not debatable or amendable and requires a two-thirds vote.
In this case, the first voter stood and made a negative motion. The moderator asked the voter to rephrase the motion. No debate had begun and the moderator had not yet stated the amendment (the motion to amend is a subsidiary motion), because he was waiting for the motion to be rephrased.
Given the above facts, it appears the moderator made the correct call in treating the "pass over" motion as a motion to object to consideration. No second was required and the motion passed by a two-thirds vote.
At one of the workshops, a moderator stated that in his town, the custom was to move to spend $0 on the social service agency appropriation articles. He wondered what the other moderators thought about that practice. If the warned article contained a dollar amount, the moderators agreed, the only appropriate main motion was a restatement of the article as warned.
If the warned article asked "what sum" the town wished to appropriate, would a motion to appropriate $0 be appropriate? Some moderators believed that the motion to adopt $0 was essentially equivalent to a rejection of the original motion, which would be out of order. Others believed that moving to spend $0 was frivolous, and still others wondered if $0 was a sum of money.
In any case, most of the moderators believed that if a voter did not wish to appropriate money to any particular agency, he or she should just vote in the negative.
DISCUSSION: Once again, it appears that the motion is an objection to consideration (See #4 above), which fails. A voter asks for discussion of the article. Although we might agree that a proper motion hasn't been made, we are confused by the moderator's ruling that no motion had been made. Most moderators would help the voter phrase the proper motion.Two other voters take issue with the moderator. One makes an appeal and the other seconds. The question before the assembly is "Shall the decision of the moderator be sustained?" The appeal fails.
There is no reference in the minutes to a request for a paper ballot, which must be requested by seven voters. 17 V.S.A. § 2658. There is also no indication as to whether the moderator suggested a paper ballot. A moderator may suggest a paper ballot, but we would recommend prefacing any such suggestion with "unless an objection is raised" or "hearing no objection."
Moderators at the workshop found the example confusing, and several also wondered why the moderator did not assist the voter by helping him or her frame a motion to accomplish what he or she intended rather than simply stating that there was no motion on the floor.
DISCUSSION: Although state law allows a town to appropriate specific amounts of money or the rate on a dollar of the grand list (17 V.S.A. § 2664), school districts are charged with voting a sum of money for support of the school (16 V.S.A. § 428).This article raises the additional issue of whether the entire school budget is being approved or just the amount to be raised in taxes. If the entire amount has not been appropriated by the voters the school district cannot spend what has not been appropriated.
The question that you, as a moderator, must address is whether an amendment to raise a sum of money rather than a tax rate is germane. This is another example of why it's helpful for moderators to read the warnings before they are formalized by their respective boards.
DISCUSSION: The minutes don't reflect what happened to the motion, but it caught our eye. A motion to postpone, either indefinitely or definitely, is certainly in order at this point in the discussion. A motion to postpone indefinitely requires a second, is debatable and is not amendable. It requires a majority vote.However, we are concerned about why the passage of the union school budget should be linked to the elementary school budget. The assessment charged by a union high school to its member districts is not an item that can be voted on at town meeting. That assessment is arrived at by the approval by the voters of the union school budget at the union school district annual meeting and and is calculated by the number of students each member district sends to the union school district.
The law does not allow a town school district any discretion in paying this stipend. In fact, the union school district may take the town school district to court to get the money. 16 V.S.A. §§ 711a & 711b. Even if the voters at town meeting refuse to approve the appropriation, it has no effect.
At the workshops, moderators were concerned about allowing a motion to postpone without a date certain, since a budget for the elementary school must be passed by the school district. Some pointed out that it was unwise to postpone until the union high school budget passed since there was no certainty that the union high school budget would pass.
The moderators were less concerned than we about linking the elementary school budget to the passage of the union school budget. They did not see it as an attempt by the elementary school meeting to vote on the union school district assessment but merely an attempt by the elementary school district to have solid union school assessment figures before passing the elementary school budget.
DISCUSSION: If town meeting members want to consider articles in a manner other than as warned, the moderator might suggest to the maker of the motion that the appropriate motion is a motion to suspend the rules in order to take up Articles 17 through 26 at the same time. A motion to suspend the rules must be seconded, cannot be amended or debated and requires a two-thirds vote.Even though the motion to suspend the rules is not debatable, it appears that the body had some discussion on the motion. In fact, so much discussion ensued that a voter moved to call the question.
A motion to call the question, which is referred to in Robert's as a motion to call the previous question, was made and seconded. A motion to call the previous question must be seconded, is not debatable or amendable and requires a two-thirds vote to pass. A motion to call the question, if approved, immediately closes debate and the making of subsidiary motions except a motion to Lay on the Table.
It appears that the motion to call the previous question was unanimously approved, but there does not appear to have been a vote taken on the previous question (the motion to suspend the rules), which would have required another two-thirds vote. Maybe that's why the motion to suspend the rules is not debatable!
The moderator must have thought there was approval for rules suspension as the final motion was to approve Articles 17-26, which was seconded and approved by voice vote.
At the workshops, one moderator stated that he would not entertain a motion that allowed the assembly to take up a group of articles at once. He referred to 17 V.S.A. § 2642(a), which states that the warning "shall, by separate articles, specifically indicate the business to be transacted . . ." He contended that because each article must be warned separately, it must be disposed of separately.
Other moderators argued that although articles must be warned separately, there is nothing to prevent articles from being disposed of collectively.
DISCUSSION: Once again, the moderator has to confront germaneness. To be germane, an amendment must in some way involve the same question that is raised by the motion to which it is applied.Using that standard, the five-year amendment could be argued to be germane. Without that amendment, the town is actually appropriating $120,000 in one year when it appears that what it is trying to do is appropriate $24,000 each year.
The article should be amended to read "to authorize the select board to purchase a new tanker truck for the fire department in an amount not to exceed $120,000, to be paid in five annual installments of $24,000.
A bill was signed into law in 1995 authorizing municipalities to approve public improvements and the acquisition of capital assets and to finance the same for more than one year.(24 V.S.A. § 1786a)
If the term of the loan is for five years or less, the town treats the article as it would any other public question on its annual or special meeting warning. If the term of the loan is for more than five years, the vote must be by Australian ballot and it must be warned as a bond vote is.
DISCUSSION: Once again, the dreaded negative motion! Imagine trying to figure out which way to vote on that issue! The moderator should ask the maker to restate the motion. If a voter wishes to support the delinquent tax collector against the select board, he should vote no on the main motion.Furthermore, it is our opinion that there is no authority for municipalities to make the position of delinquent tax collector appointive. If the municipality chooses not to elect a delinquent tax collector, which is appropriate given the language of 17 V.S.A. § 2646(9), the constable becomes the collector. 24 V.S.A. § 1529. Obviously, municipalities with charters may have other provisions.
DISCUSSION: Is the amendment to place the unexpended balance of the appropriation back into the treasury for the sole purpose of reducing the tax rate in the following fiscal year germane? We think it is, but we also feel the amendment is unnecessary because state law requires that any unexpended balance in the appropriated amount be returned to the treasury to be reappropriated in the next fiscal year budget.There are two exceptions to the above statement. If the school district asks the voters to set some or all of the monies aside in a reserve fund (24 V.S.A. § 2804), that money can then be set aside and not included in the general fund monies.
If some or all of the unexpended monies are the result of unanticipated state aid, the school directors may deposit the difference between their estimated and actual state aid receipts in a special fund without voter approval and the balance may be carried forward into following school years. However, prior to spending any of the monies in the special fund, the school directors must submit those proposed expenditures to the voters for their approval. The monies may be expended for either capital debt service or operating expenditures.
There is no indication that there was a vote on the motion to call the previous question. That requires a two-thirds vote.
DISCUSSION: What's going on here? There are four motions on the floor; the main motion, one primary amendment, one amendment of the second degree and one amendment of the third degree. The last amendment should not have been allowed. "An amendment of the third degree is not permitted, since it would make the parliamentary situation too complicated. To accomplish the same purpose, a member can say, while the secondary amendment is pending, that if it is voted down, he will offer another secondary amendment -- which he can then indicate briefly in its place. Only one primary amendment and one secondary amendment are permitted at a time, but any number of each can be offered in succession -- so long as they do not again raise questions already decided." See Robert's, page 130.The motion offered as the main motion is a negative motion, is substantially the same as the motion to pass over that has previously been rejected by the assembly. It should have been ruled out of order.
The proposal to appropriate $10,000 should have been treated as the main motion. See Robert's, page 108.
The proposed amendment to the $10,000 amendment lowers the appropriation and also limits the scope of protection to "outside protection," which raises a new issue. When the vote on the $10,000 motion failed, the issue was decided and there should not have been any vote on the proposal to appropriate "$0."
DISCUSSION: A motion to amend can be applied to itself so that a secondary amendment (or an amendment to an amendment) will result, but a motion to amend cannot be applied to a secondary amendment. In this case, the moderator allowed the main motion for a $900,000 budget to be amended by a primary amendment ($950,000) and a secondary amendment ($920,000). Although secondary amendments cannot be amended, he proceeded to allow another amendment ($878,000). Only one primary amendment and one secondary amendment are permitted at a time, but any number of each can be offered in succession -- as long as they do not again raise questions already decided. (Pg. 130).A maximum of three alternatives can be pending at once, and the last one moved must be voted on first. The moderator should not have permitted the $878,000 amendment, perhaps offering the mover a later opportunity once the assembly had voted on either of the other amendments. When the question was called by the moderator, the secondary amendment should have been voted first.
The moderator may have been trying, unsuccessfully, a procedure known as "filling the blank."
To use the process for "filling the blank," a voter must move to create a blank, and the motion must be seconded. A moderator could also suggest the creation of a blank, if there were no objection. A motion to create a blank can also be made and voted on while a primary or secondary amendment is pending.
If the proposal for a blank is adopted, the amounts in the pending amendments become proposals for filling the blank. A motion to create a blank is neither debatable nor amendable. Once a blank has been created, any number of members, without a second, can propose a number for filling it. A voter cannot suggest more than one proposal for filling the blank unless he receives unanimous consent to do so. Each proposal is debatable and is voted on separately until one is approved by a majority. When voting to fill the blank, especially with numbers, it is advisable to start with the figure that is least likely to be approved. In this manner, the moderator assures that each proposal is properly considered. For example, if a moderator started with the smallest sum, it might be approved, leaving no opportunity for the voters to express their favor or disfavor with the other amounts proposed.
DISCUSSION: The "motion to reword" is an amendment that some moderators won't accept and others will. Is this one germane? Well, it's related to the subject of hiring a reappraiser, but it adds a new wrinkle. We'd probably allow it. The voters can always vote it down.The effort to withdraw an amendment, however, was not properly handled at this meeting. Once a motion has been moved and seconded and restated by the moderator, according to Robert's, it cannot be withdrawn by agreement of the mover and seconder alone. It needs the agreement of a majority of the assembly. The moderator can make things easier for everyone by announcing that he or she will allow its withdrawal if there is no objection from the voters; hearing none, the moderator then simply announces that it has been withdrawn.
Increasing the listers' budget and salary schedule is not going to pass the germaneness test in our town, however. That might be done under the general fund or officer salary article, but it's not close enough to the question of whether to hire a professional appraiser or not, and at what price. Better to vote the article down and adjust budgets and salaries of listers in another place. A town doesn't have to vote to conduct a reappraisal, after all. That's an annual responsibility of the listers, one that they might accomplish if they had the tools and time.
DISCUSSION: Robert's says an amendment is out of order if it "would make the question as amended identical with, or contrary to, one previously decided by the assembly during the same session." Robert's, page 135 Having settled on a figure for the budget, the assembly, according to Robert's, must stick with that figure (although it may go on to amend something else in the main motion), unless a motion to reconsider is made.What would we do? We'd let the amendment (the second amendment, in the exercise) go, without requiring reconsideration, on the grounds that town meeting procedure has traditionally allowed a less rigorous approach to amendments than a purist view of Robert's would suggest.
DISCUSSION: The amendment is proper, in our opinion, since a town budget is involved. This does not work for school budgets, because state law charges the voters with appropriating a sum of money and the school board with determining how those funds shall be expended. 16 V.S.A. § 562(8).The vote, however, is not proper. The first vote, with 29 yes, 30 no, and one blank, is effective to defeat the article, and a second vote is unnecessary. The reason is that blanks aren't counted in the tally. Robert's, page 409.
To our surprise, Robert's goes on to tell us that illegal votes are counted in deciding what constitutes a majority. While we're discussing voting, we should note that candidates must win by a majority vote under Robert's, pages 410-11 and, again, the illegal (or what we might call spoiled votes) are counted in determining what constitutes a majority. Additionally, nominations for office under Robert's do not need to be seconded.
This is not the case in Australian balloting where the polls are open all day. In that case, a candidate must win only a plurality and no blanks or spoiled votes are counted.
DISCUSSION: The article asks for an amount not to exceed $1,600 for seven organizations. If an amendment is offered to change a particular amount listed in the warning, the motion should also reflect the change in the total amount to be appropriated.
- Retired Senior Volunteer Program, $250
- County Youth Service Bureau, $250
- Northern Vermont Resource Conservation, $250
- County Citizens Advocacy, $100
- Kellogg Hubbard Library, $350
- Battered Women's Services, Inc., $250
- Project Graduation, $150
Here the voters were not interested in voting separately on any of the listed appropriations. But if they had been, the appropriate way to do this is through a motion to divide the question. This motion requires a second, is not debatable, is amendable, requires a majority vote and cannot be reconsidered. See Robert's, pages 268-269.
Here is a recapitulation from the 1994 moderator's workshops on reconsideration. Also included is a summary of the municipal borrowing law passed last year.
Last year, for the first time, it was possible for voters to reconsider their actions on main articles at town meeting. Voters used this new procedure at many town meetings in 1993, but moderators still have questions about the timing of a motion to reconsider an article and the process for making the motion.
According to 17 VSA § 2661(a), a warned article voted at a town meeting may be reconsidered at the same meeting before the assembly has begun consideration of another article.
But when does consideration of another article begin? Is it when the next article is read; when the next main motion is made and seconded; or when the next motion is stated? Robert's distinguishes between bringing a motion before the assembly and consideration of that motion. "Neither the making nor the seconding of a motion places it before the assembly; only the chair can do that, by...stating the question. When the chair has stated the question, the motion is pending. It is then open to debate." See Robert's, pages 31-41.
Once a motion is placed before the assembly by the moderator, therefore, it is ripe for consideration by the body and it is too late to move to reconsider the vote on the previous article.
You should also note that Robert's provides that a Motion to Reconsider must be made by a person who voted on the prevailing side of the motion to be reconsidered, and that it requires a second, is debatable, requires a majority vote and may not be reconsidered. There was some discussion of the "voted with the prevailing side" requirement. Folks wanted to know if it is necessary to enforce this requirement and if so, how the moderator can tell if the person voted with the prevailing side? People had different opinions. For a variety of reasons we would like a less stringent rule, but after thinking it over, we have come to the conclusion that the best advice is that you follow Robert's. The proper way to make the motion is for the maker to say: "I move to reconsider the vote on Article ___. I voted for [or "against"] the article." If the person fails to state which side he or she voted on, the moderator should ask the person moving reconsideration to state how he or she voted. See Robert's, page 324. No further inquiry on the moderator's part is necessary.
The question of short-term borrowing has been resolved by a recent Vermont Supreme Court decision which states that municipalities may not borrow for periods in excess of one year unless they bond for the money. Conn et al. v. Middlebury Union High School District #3, No. 93-420.
A bill has was signed into law by the governor in 1995 that allows the voters of a municipality to authorize public improvements and to finance the same over a term of not more than five years. The new law also validates any outstanding loans having a term of one year that were authorized or issued by a municipality. 24 V.S.A. § 1786a.
If a municipality wishes to borrow for more than five years, a vote by Australian ballot is required, and the election must comply with the procedural requirements of the bond law set out in 24 V.S.A. §§ 1755, 1756 and 1757. 24 V.S.A. § 1786a.