Why there is a bogus "special meeting" request and what to do

Hello West Linn residents, lately we've heard chatter on social media about three Councilors, Cummings, Sakelik, and Relyea, requesting a "special meeting" of the City Council for tomorrow December 30.

Based on a transcript of a very astute response to this request from Mayor Axelrod, posted by Brenda Perry on Facebook, we know a little bit about what's going on and make a very educated guess as to why.

Let's run through some of the questions:

Was a Special Meeting in fact scheduled?

No, there was no "special meeting" set. Council Rules (linked to here as a PDF) section B allow for the calling of a special meeting with little notice requirements, but are pretty strict about not only how to call such a meeting but also what the requirements are:

"5) Special Meetings. Special meetings are to be utilized only when absolutely necessary, and public comment shall be taken at all special meetings. The Mayor, or in the Mayor’s absence the President of the Council, may, or at the request of two or more Councilors, call a special meeting for the Council in accordance with state law. Special meetings will typically be scheduled in a similar manner as a regular meeting, including a pre-meeting."

So regardless of who is calling the Special Meeting, whether that's the Mayor or Council President or two councilors... the rules are clear that "special meetings are to be utilized only when absolutely necessary..." This is referred to in the Mayor's response, where he goes over the requestors' desired agenda and points out that there's actually nothing in there that is "absolutely necessary" to be discussed in an immediate special meeting. (In sum, the topics are a discussion of what to do when a sitting councilor is elected mayor and also discussing the performance of the City Attorney.)

The Mayor is empowered to make this determination by our City Charter. As the Mayor's letter points out, he is granted the sole responsibility of enforcing the Council Rules per Article IV, Section 17 of the Charter:

"The Mayor shall preserve order, enforce the rules of the Council, and determine the order of business under the rules of the Council."

The Mayor apparently addressed the letter to the City Manager and City Attorney, which it should be noted would certainly be called upon to assist with holding such a meeting, but as Charter Officers of the City, neither is empowered to call a Council meeting or interpret or enforce Council Rules. Those powers rest with the Mayor and Council alone. (Per Robert's Rules of Order, if a majority of the City Council disagrees with the Mayor's ruling or interpretation on a mater of rule, they may appeal that decision at a Council meeting.)

What was the reason for the request?

Based on Mayor Axelrod's response, the request was made on two fronts. One was to discuss the City Attorney's performance evaluation, which as the Mayor points out hardly warrants an "absolutely necessary" special meeting.

The other issue was to "discuss 'how [Councilor Walters] being Mayor elect created a vacancy,'" which is -- as Mayor Axelrod points out -- a false premise, and also to discuss "what procedure to utilize when a resignation is pending, what process and procedure to utilize for announcing the vacancy and lastly how the orderly conduct of business is impacted by a vacancy when an existing Council member is elected as Mayor." That last bit is a mouthful, but also troubling in how it aligns with some previous statements made by Councilors.

(We'll soon get to one possible reason why that request is so keen to emphasize the idea of a resignation and vacancy.)

What are the implications of this request?

Simply put: It sure sounds like the requesting Councilors are maneuvering to attempt to keep either Sakelik or Cummings on the Council much longer than expected. Let's walk through the thought process here...

At the November 9 meeting, Councilor Relyea may have tipped his hand in stating what he wanted to look further into:

"And under the vacancy section, you're talking about section 30 to 31, Section 31 as far as council's ability to appoint, only applies to those specific instances called out in section 30, and section 30 does not talk about a councilmember running for office as mayor. So section 31 does not apply. There are some provisions in there that I believe would allow an existing councilmember to maintain their current seat on council until a successor runs for office or is appointed or selected for that position."

In sum, Relyea seems to be indicating that a vacancy created by Councilor Walters moving up to the Mayor's seat might not be filled in the regular way called for by Section 31 of the Charter: a special election. (As a side note, this is a patently incorrect interpretation, since a specific instance need not necessarily be called out for a general circumstance to apply... or to put it another way, Relyea also said that "charter language that does not exist within our current charter that addresses eligibility for a sitting city council member to run for mayor," but neither is there language specifically addressing the eligibility for persons with mustaches to run for mayor, or persons who are officers of Neighborhood Associations. It's not necessary.)

The key issue, though, is that for a scheme to maintain one of the two expiring Council seats to have any chance at all, Councilor Walters would have to resign her seat prior to the swearing in of new councilors... And this is where I agree with Councilor Relyea only in that the Charter does get ambiguous, but only under very specific circumstances.

The Charter makes two references to the terms of Councilors that could potentially conflict. In Section 8, it states that:

"Councilor candidates receiving the largest and second-largest number of votes shall be elected for four-year terms"

Then in Section 10, it states:

"The term of office of an elective officer who is elected at a general election begins at the first Council meeting of the year immediately after the election, unless otherwise specified, and continues until the successor to the office assumes the office. "

Imagine, if you will, a scenario in which a sitting Councilor does not have a successor who assumes their office. The case would be made that Section 10 of the City Charter simply allows that Councilor's term to carry on until there is such a successor. Combined with Relyea's suggestion that Section 31 (calling for a special election) may not apply, and you have a situation in which that Councilor might remain in that seat for up to another 4 years.

Here is how we generally expect the swearing in to go, and also how the Charter envisions it (that is to say, the way that does not create any ambiguities in its interpretation).

Step 1: The current City Council, just before swearing in begins.

Step 2: Baumgardner and Bialostosky are sworn in (doesn't matter what order), and assume the seats of Councilors Cummings and Sakelik. Per the City Charter section 10, Cummings' and Sakelik's terms are ended at this point because their successors have been sworn in.

Step 3: Councilor Walters is sworn in as Mayor, thereby vacating her Council seat. The swearing-in is complete and there is a 4-member City Council. The vacancy will be filled in the manner provided for in Sections 30 and 31 of the City Charter: a special election.

However, if someone wanted to play fast and loose with the process, here is how they might conduct swearing-in:

Step 1: The current City Council, just before swearing in begins.

Step 2: Councilor Walters is sworn in as Mayor, thereby vacating her Council seat. A vacancy is created but the swearing-in of councilors is not yet completed.

Step 3: Baumgardner (or Bialostosky, it doesn't matter and I went in alphabetical order) is sworn in as Councilor to the vacant seat. The four Council seats are not individually designated, so no one can say which councilor-elect is destined for which seat.

Step 4: Bialostosky is then sworn in to Cummings' seat (or Sakelik's... it doesn't matter, again I went in alphabetical order). Per Section 10 of the Charter, Cummings term has ended. In this scenario, Councilor Sakelik relies on Section 10 of the Charter, which states that his term "continues until the successor to the office assumes the office."

If this was indeed the goal of the three Councilors who requested the special meeting, then they would need to do several things to ensure that this scenario came to be:

First, they would lay the groundwork for acknowledging an ambiguity in the Charter so that the Section 8 references to "four year terms" could be challenged. As noted, this has already been done when Councilor Relyea suggested in November that "There are some provisions in there that I believe would allow an existing councilmember to maintain their current seat on council."

Second, it would be imperative that Councilor Walters resigned her seat prior to Councilors-Elect Baumgardner and Bialostosky being sworn in. Whether by coincidence or by design, we are seeing that happen:

At the November 9 meeting, Councilor Relyea expressed some concerns with the recent election:

"Regarding the current election where Councilor Walters was elected to mayor, and it regards charter language, a requirement for resignation..."

(There is not in fact any Charter language to that effect.)

Based on Mayor Axelrod's response to the request for a special meeting, it sounds like the initial request contained a vain attempt to suggest that a vacancy was already created, referring to "how [Councilor Walters] being Mayor elect created a vacancy," and notably:

"...what procedure to utilize when a resignation is pending, what process and procedure to utilize for announcing the vacancy and lastly how the orderly conduct of business is impacted by a vacancy when an existing Council member is elected as Mayor."

This portion is especially concerning, because it raises the possibility that at a special meeting, a majority of Councilors might attempt to circumscribe rules or sequences as to how the swearing-in should take place.

Indeed, according to a transcript posted on Facebook, on 8:59am on December 24, Councilor Cummings sent an e-mail to the City Manager that asserts:

"The following order of business is appropriate for the January 4, 2021 City Council Meetings and Councilor Relyea and I ask that the Agenda be revised accordingly: ... [Irrelevant material excluded] ... Councilor Walters resigns as a City Councilor - The City Charter under Section 30 provides language that indicates the Council must declare a vacancy in cases when the incumbent resigns. Thus, Councilor Walters must resign her current position so that Council can announce the vacancy. The remaining Council declares a vacancy and votes to fill the position by appointment until a "successor" is elected, per Charter Section 31. City Manager/City Attorney report Swearing-in ceremony."

This sequence -- where Councilor Walters resigns and creates a vacancy prior to new Councilors being sworn in -- would create the exact troubling circumstance described above. Additionally, it gives the Council majority the further option to either leave the vacancy open (which happened in 2015) or to select an appointee prior to the new council being sworn in:

Step 1: Current Council, as usual.

Step 2: Councilor Walters resigns her seat (which is unnecessary). This creates a vacancy.

Step 3: The existing Council, minus former Councilor Walters, appoints a replacement. This can be almost anyone, including an existing member of the Council such as Sakelik or Cummings.

Step 4: Walters, Baumgardner, and Bialostosky are sworn in (in any order), as well as whomever the previous Council (Cummings/Sakelik/Relyea/Axelrod) decided to appoint.

In sum, there are indeed some circumstances the City Council could maneuver into in order to create enough ambiguity and chaos to confuse the issue. In addition, there are ways that the outgoing members of the Council could leave a new councilor (or one of themselves) on the Council after the January 4 swearing-in of new Councilors.

What can be done?

This apparent attempt at a low-grade coup is predicated on much more authority than the outgoing Councilors have. Indeed, Councilor Cummings' email asking to set the agenda brazenly wades into a power reserved for someone else; Section 17 of the City Charter clearly gives the power to set the agenda to Mayor Axelrod alone:

"... The Mayor shall ... determine the order of business under the rules of the Council."

That small provision may have once been seen as superfluous, but we are in a circumstance right now where those small procedural rules can have big effects down the line. So expect attempts to control even those procedural items that may seem insignificant!

Simply put, there's not a lot that needs to "be done" other than refusing to capitulate to these last-minute efforts to game the system. Based on Mayor Axelrod's letter, he doesn't seem interested in these games, which is good news.

The other thing to be done is to ensure that -- in order to minimize Charter ambiguity -- on January 4 the incoming Councilors are sworn in prior to Councilor Walters giving up her Council seat and being sworn in as Mayor.

Happy holidays!