Censuring Council Member Michael Finnerty for committing eight separate violations of the Rules of Council and Robert's Rules of Order during the course of the March 26, 2014 meeting of the Committee on Budget and Finance, which, in the judgment of Council, undermine the ability of Council to function as an effective legislative body while simultaneously reducing the transparency of Council's proceedings, jeopardizing the public's faith in the impartiality and independence of Council and violating the standards established by the Allegheny County Ethics Code, and additionally requiring the Executive Committee to conduct a public meeting to determine Mr. Finnerty's fitness to continue in the role of Chairman of the Committee on Budget and Finance, and authorizing the delivery of a formal written apology for Mr. Finnerty's conduct to the Allegheny County Controller.
WHEREAS, the Rules of Council regarding Decorum in Meetings, Article II, Rule M., governs council members' behavior in the course of Council proceedings and expressly establishes Robert's Rules of Order as supplementing the Rules of Council as a determinant of proper decorum in all meetings; and
WHEREAS, Article II, Rule M.9. of Council's Rules make available a censure motion for violation of the Rules regarding Decorum and other ethical or legal standards of behavior that are applicable to the Council Members in the course of conducting County business; and
WHEREAS, at the March 26 meeting of the Committee on Budget and Finance, the Chair began discussion of Bill No. 8151-14 by asserting its illegality based upon an opinion that the chair obtained via direct request to Council's solicitor, then refused to permit any discussion of Bill No. 8151-14 beyond his bare assertion; and
WHEREAS, the Chair then refused to recognize a member of the Committee on Budget and Finance for the purpose of offering an amendment to Bill No. 8151-14 in order to cure the alleged illegality; and
WHEREAS, when another member of the Committee on Budget and Finance requested advice regarding the authority of the Chair to undertake these actions, the clerk responded that any ruling of any chair can be appealed under the procedures outlined in Robert's Rules of Order, §24, at which time the Chair accused the clerk of holding himself out to the Committee as its solicitor; and
WHEREAS, the right of appealing any ruling of any chair is not discretionary pursuant to Robert's Rule of Order, 10th Ed., §24, p.247, which, in relevant part, reads as follows: "[b]y electing a presiding officer, the assembly delegates to him the authority and duty to make necessary rulings on questions of parliamentary law. But any two members have the right to appeal from his decision on such a question. By one member making (or "taking") the appeal and another seconding it, the question is taken from the chair and vested in the assembly for final decision."; and
WHEREAS, Section 24 is not equivocal, and expressly categorizes the ability to appeal rulings of the chair as an absolute right; and
WHEREAS, by refusing to permit a member of the Committee on Budget and Finance after recognizing a committee member and granting her the floor, the Chair abrogated that right on his own initiative, effectively seizing control of the question from the body contrary to the expressed intent of §24; and
WHEREAS, Robert's Rules are also quite clear on the matter of debate, establishing within §43 at page 373: "[d]ebate, rightly understood, is an essential element in the making of rational decisions of consequence by intelligent people. In a deliberative assembly, this term applies to discussion on the merits of a pending question - that is, whether the proposal under consideration should, or should not, be agreed to. That the right of debate is inherent in such an assembly is implied by the word deliberative
.While the amount of debate on a motion in actual practice will depend on such factors as its importance, how strongly it is contested, etc., every member of the assembly has the right to speak to every debatable motion before it is finally acted upon; and subject only to general limitations on debate established by parliamentary law or the rules of the body as explained below, this right cannot be interfered with except by a two-thirds vote."; and
WHEREAS, pursuant to §43, the ability of the members to speak to every debatable motion is also framed as a matter of right, not discretion, and the Chair entirely eviscerated this right by forbidding any member of the committee or member of Council other than himself to speak to the merits of Bill No. 8151-14 in any fashion; and
WHEREAS, Robert's Rules also discuss the concept of "gaveling through" under the provisions of §43, at page 374: "[i]t should be noted that, under legitimate parliamentary procedure, there is no such thing as 'gaveling through' a measure. The right of members to debate or introduce secondary motions cannot be cut off by the chair's attempting to put a question to vote so quickly that no member can get the floor - either when the chair first states the question or when he believes debate is ended. Debate is not closed by the presiding officer's rising to put the question."; and
WHEREAS, while the actions of the Chair at the March 26 meeting did not amount to cutting debate off by calling for a vote, they were unfortunately more egregious than the example appearing in §43, insofar as debate was cut off by the chair acting alone, without the approval of the body, such that no discussion on the merits of the matter and (even more significantly) no vote could take place; and
WHEREAS, Robert's Rules, §43 at pages 382-3 also clearly and specifically preclude the actions undertaken by the chair at the March 26 meeting: "[f]f the presiding officer is a member of the society, he has - as an individual - the same rights in debate as any other member; but the impartiality required of the chair in an assembly precludes his exercising those rights while he is presiding. Normally, especially in a large body, he should have nothing to say on the merits of pending questions. On certain occasions - which should be extremely rare - the presiding officer may believe that a crucial factor relating to such a question has been overlooked and that his obligation as a member to call attention to the point outweighs his duty to preside at that time. To participate in debate, he must relinquish the chair
The presiding officer who relinquished the chair then should not return to it until the pending main question has been disposed of, since he has shown himself to be a partisan as far as that particular matter is concerned. Indeed, unless a presiding officer is extremely sparing in leaving the chair to take part in debate, he may destroy members' confidence in the impartiality of his approach to the task of presiding."; and
WHEREAS, this portion of §43 makes abundantly clear that the chair should not even have been the presiding officer at the time the appeal motion was made; because he was participating in debate, and the plain language of §43 clearly requires that he pass the gavel and not reclaim it until the matter he is debating is resolved; and
WHEREAS, the legal opinion referred to by the chair in the course of the March 26 meeting was obtained through improper means, according to the plain language of the Rules of Council (specifically Article II, Rule F.4): "[t]he committee is charged with reviewing, discussing, and, if the Chair deems necessary, investigating the legality of proposed legislation. Should a Chair or other Member of Council desire a legal opinion on any item of pending legislation or issue before the committee, such legal opinion shall be requested through the Clerk, regardless of whether the opinion is requested from the County Solicitor of Legal Counsel."; and
WHEREAS, the first sentence of Rule F.4. clearly and unambiguously vests the duty of reviewing the legality of legislative items with the committee as a whole, not with the chair as an individual, and by precluding any discussion by any member of the Committee other than himself, the chair acted to deprive the committee of the chance to fulfill its duties under Rule F.4.; and
WHEREAS, the second sentence of Rule F.4. clearly, unambiguously, and specifically requires that any request for a legal opinion, whether from the chair or any other member and regardless of the entity to provide the opinion, must be requested through the Clerk, and this was not done for the legal opinion referenced by the Chair at the meeting, as the request was tendered to the solicitor directly by the chair; and
WHEREAS, by treating the legal opinion he improperly obtained as binding upon the committee, the chair grossly misrepresented the significance of that opinion; any legal opinion obtained from any source is purely advisory, does not have the force of law, and is not binding upon the Council or any Committee thereof; and
WHEREAS, in addition, the improperly obtained legal opinion is neither based upon well-established law nor upon clear and unambiguous language, as it is based upon a never before litigated section of the Administrative Code that establishes that the Council may enact interdepartmental transfers upon the recommendation of the Chief Executive, but which does not define the term "recommendation," nor does it expressly require that only the Chief Executive may introduce interdepartmental transfer legislation or bar any other elected official from doing so; and
WHEREAS, the Rules of Council are perfectly clear at Article II, Rule M.3.: "[a] council member who has the floor shall refrain from dealing in personalities and impugning the motives of others."; and
WHEREAS, there is no limitation on the individuals protected by the provisions of Rule M.3.; the rule on its face forbids dealing in any personalities, and impugning the motives of any other person(s), and the rule does not limit its application to impugning the motives of other members of council; and
WHEREAS, the first of two violations of this rule by the Chair in the course of the March 26 meeting took place when he opted to at least imply that the County Controller intentionally introduced a bill knowing of its illegality; and
WHEREAS, the Chair also impugned the motives of the clerk by expressly suggesting that the clerk was holding himself out as the Council's solicitor, a suggestion that is not in any way supported by the record; and
WHEREAS, under the terms of Rule M.3., any utterance impugning the Controller's or clerk's motivations was improper; and
WHEREAS, when the foregoing is considered in its entirety, the Council has no choice but to conclude that the picture that emerges is that of a Chair who improperly deprived the Committee on Budget and Finance of its right to decide a matter of order through the appeal process, who improperly took part in debate and made rulings while doing so that were specifically intended to deprive the other members of the body of their rights under the applicable rules, who utilized an improperly obtained legal opinion to support his position during debate, and who twice improperly impugned the motives of other individuals in a calculated attempt to entirely circumvent the Committee on Budget and Finance's ability to undertake a reasoned deliberation of Bill No. 8151-14; and
WHEREAS, it is the judgment of Council that Mr. Finnerty intentionally mischaracterized the improperly obtained legal opinion as binding upon the Council and/or the Committee on Budget and Finance, again specifically for the purpose of eliminating the Committee's ability to undertake its duties of due diligence; and
WHEREAS, the Ethics Code of Allegheny County clearly establishes that all Council Members are to abide by the Code's standards for honor and integrity, and "[d]edicate themselves to the highest ideals of honor and integrity in all public relationships in order to merit the respect and confidence of covered persons, and the public;' and
WHEREAS, it is further the judgment of Council that Chairman Finnerty's repeated, calculated and apparently malicious actions at the March 26 meeting of the Committee on Budget and Finance served no legitimate governmental or public purpose, and are clearly contrary to the Rules and the Ethics Code provisions relating to decorum, honor and integrity; and
WHEREAS, it is additionally the judgment of Council that Chairman Finnerty's actions, if permitted to stand without review and additional clarification that such actions are detrimental to the Council's function and will, if repeated, inevitably serve to reduce or eliminate the ability of the Committee on Budget and Finance and, by extension, of the Council to serve as an independent, impartial and objective body during the process of formulating the County's 2015 operating, capital, and grants and special accounts budgets, which will begin within the next few months; and
WHEREAS, it is finally the judgment of Council that Chairman Finnerty's actions rise to the level of requiring the conduct of a hearing by the Executive Committee in order to determine his fitness to continue in the role of Chairman of the Committee on Budget and Finance, with such hearing to be open to the public.
NOW THEREFORE, IT IS MOVED, BY THE COUNCIL OF ALLEGHENY COUNTY,
That Council Member Michael Finnerty is hereby censured and reprimanded for willfully and intentionally violating both Robert's Rules of Order and the Rules of Allegheny County Council as described herein, as well as violating the standards of honor and integrity applicable to his position as a Member of Allegheny County Council under the terms of The Allegheny County Ethics Code, codified at §5-1013.09 of the Administrative Code of Allegheny County.
IT IS FURTHER MOVED, that the Executive Committee shall, within 10 days of the date of final passage of this Motion, meet in a public session in order to conduct a hearing on Mr. Finnerty's fitness to continue in the role of Chairman of the Committee on Budget and Finance; and
IT IS FURTHER MOVED, that the Council shall, with all speed, deliver a formal written apology to the Allegheny County Controller for Mr. Finnerty's intentional disregard of applicable rules and standards of conduct and his calculated attempt to improperly eliminate any debate on Bill No. 8151-14 for the apparent specific purpose of allowing himself the opportunity to publicly accuse her of illegal action without any chance for rebuttal or contradiction.
PRIMARY SPONSOR: COUNCIL MEMBER HEIDELBAUGH
CO-SPONSOR: COUNCIL MEMBER ROBINSON