Tuesday, June 23, 2009

City Council Poised To Break Its Own Rules?

Last night, I watched the replay of yesterday's Finance Committee meeting. (Yes, I do know how geeky that makes me.) It's clear that the Council is facing extraordinarily difficult choices. But there may be an interesting procedural show-down at Wednesday's Council meeting that the press isn't really talking about.

City Council, like any legislative body, operates according to a set of internal rules. These are rules that the Ohio Revised Code gives it leeway to create. City Council makes them, and by a two-thirds vote, City Council can alter or suspend them. A few years ago, a rule was adopted that was designed to protect the City's "reserve" fund. Apparently, it requires that any time Council spends money from the fund, it finds corresponding funds to replace it.

Rules are, of course, made to be broken. And this one can be, too, just like any other rule. The catch? According to the rules, any rule can be suspended by a two-thirds vote of Council.

The plan to balance the 2009 budget that passed in Finance Committee relies heavily on reserve funds. There's no plan, of course, to replace the newly-allocated reserve funds. But as far as I can tell, the proposal is supported by just five Council members (Cole, Crowley, Harris, Qualls, and Thomas). That means that while there are enough votes to secure passage of the measure, there aren't enough votes to suspend the rule--which should be a necessary precondition to passage.

Ultimately, this will leave the decision to Mayor Mallory. When the question is called (assuming the vote count doesn't change), he'll have two options: ignore the rule and and declare the amended budget to have passed, or enforce the rule, thus requiring a two-thirds majority for passage. I don't know what the mayor intends to do.

Before you litigation-hungry types get all worked up, don't bother. I highly doubt there's a taxpayer's suit that can be filed that would prevent Council from breaking its own rules. Just like the US Supreme Court doesn't intervene to stop Congress from breaking its own rules, it's unlikely a Common Pleas court will tell Council how to operate, as long as it acts within the external constraints placed upon it. Enforcement of internal constraints are entirely up to the Council itself. A court would probably rule that this is a non-judiciable "political question."

Reasonable people can disagree as to the wisdom of depleting the reserve fund. Frankly, I lean towards the position that the current economic crisis is precisely the reason a government has a reserve fund. If this isn't a contingency that demands extraordinary action, then what is? If it means poor kids can swim and the uninsured get health care, then dip into the reserve.

But regardless of where you come out on the substantive issue, how can a reasonable person believe it's good for Council to break its own rules? If the rules require a two-thirds vote to cash in the reserve fund, then that's the process that should be followed. I might like the result this time, but that's just the problem: I might only like it this time. Maybe next time there's a rule the enforcement of which would lead to a result I'd be happier with. But if the suspension rule is expendable this time, why would a five-member majority pay it any heed next time?

We elect our Council members to act as a professional, responsible legislative body. They sometimes fall short of that standard. But one would think that at the very least, they can follow the rules they wrote for themselves.

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