Overview of Voting Rules
Voting is one of the most important things that local governing boards do. They vote on a range of things, including, motions, resolutions, ordinances, franchises, contracts, and any other matters that come before them for action. There is no single voting rule for the entire range of local governing board actions. Several state statutes create specific voting requirements for certain matters. For example G.S. 159-17, which specifies that a budget ordinance (including budget amendments) may be adopted by a majority of those of those and voting. As described in my blog post here, some local governments have adopted local voting rules for some kinds of actions. In the absence of a specific voting requirement, it is generally assumed that actions of a board are approved by a majority vote of those present and voting.
Two important examples of special voting statutes are G.S. 153A-45 and G.S. 160A-75, which describe the voting requirements for ordinances adopted by city and county governing boards. For cities, the statute also applies to votes on contracts and commitments of funds.
The statutes are, set out in pertinent part, here:
Counties:153A-45. Adoption of ordinances. To be adopted at the meeting at which it is first introduced, an ordinance or any action having the effect of an ordinance (except the budget ordinance, any bond order, or any other ordinance on which a public hearing must be held before the ordinance may be adopted) must receive the approval of all the members of the board of commissioners. If the ordinance is approved by a majority of those voting but not by all the members of the board, or if the ordinance is not voted on at that meeting, it shall be considered at the next regular meeting of the board. If it then or at any time thereafter within 100 days of its introduction receives a majority of the votes cast, a quorum being present, the ordinance is adopted.
Cities: 160A-75. Voting. An affirmative vote equal to a majority of all the members of the council not excused from voting on the question in issue, including the mayor’s vote in case of an equal division, shall be required to adopt an ordinance, take any action having the effect of an ordinance, authorize or commit the expenditure of public funds, or make, ratify, or authorize any contract on behalf of the city. In addition, no ordinance nor any action having the effect of any ordinance, except an ordinance on which a public hearing must be held pursuant to G.S. 160D-601 before the ordinance may be adopted, may be finally adopted on the date on which it is introduced except by an affirmative vote equal to or greater than two thirds of all the actual membership of the council, excluding vacant seats and not including the mayor unless the mayor has the right to vote on all questions before the council. For purposes of this section, an ordinance shall be deemed to have been introduced on the date the subject matter is first voted on by the council.
Supermajority Vote Requirements. Both of these provisions require supermajority votes early in the process of an action. The county statute requires a supermajority vote by the board of commissioners for enactment at the meeting at which it is “first introduced” and the city statute does so for adoption “on the date on which it is introduced.” There are good reasons for the supermajority voting requirement. It can prevent hasty enactment of new laws, and it can ensure that there is time for the board and the citizens to become aware of and properly consider the proposal before it is enacted. It allows boards to move forward quickly when a supermajority supports it and slows the process down if the proposal starts with only a majority ready to adopt it. Unfortunately, there are several important parts of these provisions that are not clear. And even though the two provisions are dealing with the same issue, the wording is not parallel in several areas. When parsing these provisions, it’s tempting to compare the two provisions. This doesn’t help very much. It is hard to divine a consistent legislative intent. This can be seen especially in the meaning of the “date of introduction.”
What is the date of introduction? The city statute defines the phrase to mean, “the date the subject matter is first voted on by the council.” This raises the question of “what is a vote on the subject matter”? This definition has not provided much clarity in practice. Several interpretations have been suggested. For example, it could be the first vote on the general topic. Under this view, a vote to refer the matter to a committee or to set a public hearing could be a “vote on the subject matter.” Or it could be the date of the public hearing. Some suggest that the first introduction of the ordinance itself cannot occur until after the hearing occurs (in cases where a hearing is required).
The county statute supermajority requirement doesn’t apply to ordinances that require a public hearing prior to adoption of the ordinance. This may be seen as a recognition that public hearings slow down the process and help the public and the government have the time to provide notice to the public of the action being considered, an opportunity to voice any concerns about it and prepare for a final decision.
With the adoption of GS 160D, there is a bit more clarity. GS 160A-75 was modified to add an exception for the 2/3 requirement:
In addition, no ordinance nor any action having the effect of any ordinance, except an ordinance on which a public hearing must be held pursuant to G.S. 160D-601 before the ordinance may be adopted, may be finally adopted on the date on which it is introduced except by an affirmative vote equal to or greater than two thirds of all the actual membership of the council, excluding vacant seats and not including the mayor unless the mayor has the right to vote on all questions before the council. For purposes of this section, an ordinance shall be deemed to have been introduced on the date the subject matter is first voted on by the council.
This exception aligns with the county statute, but only with respect to land use development regulations for cities. Both counties and cities are subject to the required public hearings. An implication of this change is that non-160D- required public hearings could be the date of introduction if there is a vote involved. If the date of introduction is not the public hearing, however, there would no need for the GS 160D exception. We really don’t know much more about the meaning of the date introduction. We know when the supermajority is not applied but we still don’t know when it is.
Here are a few more things that we do we know and some that we don’t.
The county statute is clear on these points:
- It takes a unanimous vote of all the members of the board to adopt an ordinance at the meeting at which it is first introduced. This requirement applies to an ordinance, or any action that has the effect of an ordinance. So even if it is called a resolution or just a motion, if it has the effect of an ordinance the unanimous vote requirement applies. The unanimity requirement does not apply if a public hearing is required prior to adoption of the ordinance.
- If the ordinance is not approved unanimously or is not voted on at all at the meeting at which it is first introduced, it must be considered at the next regular meeting of the board. At that time, it can be adopted by a majority of those present and voting.
- If it is not adopted at the next regular meeting, it can be adopted at a meeting any time after that meeting but within 100 days of its introduction, by a majority of those present and voting.
- The ordinance is not considered finally rejected if the supermajority vote is not obtained on first introduction, unless the majority vote is against approval. The statute clearly allows a second vote with a majority requirement within the specified period.
Some important aspects of the county statute are not clear:
- Does this voting requirement apply when a hearing was held, even though no hearing was required by law? The language suggests that only hearings that are required by law are considered, but might a judge conclude that an optional hearing could suffice to eliminate the supermajority requirement.
- As noted above, what does it mean for the ordinance to have been “first introduced?” The city statute specifies that the day of introduction is the “date the subject matter is first voted on the by the council.” Since this language is not included in the county statute, should or may a board of county commissioners adopt the city definition as its standard? Or may the county commissioners establish a different definition of their choice?
- Should vacancies and members excused from voting be excluded when applying the unanimous vote requirement? If not, it would be impossible to adopt an ordinance on first reading any time a member is excused or there is a vacancy. The city statute specifically addresses vacant seats and members who are excused. Since no reference is included in the county statute, should or may a board of county commissioners adopt a local interpretation? Or does the omission suggest a legislative intent that they are to be included the ordinance?
The city statute is clear on these points:
- It takes a majority of all the members of the council not excused from voting to adopt an ordinance.
- This requirement applies to an ordinance, or any action that has the effect of an ordinance.
- It takes a vote of two-thirds of all the members of the council, excluding vacant seats and the mayor (unless it’s a voting mayor), to adopt an ordinance on the date on which it is introduced.
- The two-thirds requires does not apply to an ordinance on which a public hearing must be held pursuant to G.S. 160D-601 before the ordinance may be adopted.
Some important things about the city statute are not clear:
- If an ordinance fails to receive a two-thirds vote on the date of introduction, does the matter fail, or does the board have an opportunity to vote at subsequent meeting at which a majority would be sufficient? The statute is silent. It simply says that the ordinance can’t pass by a simple majority vote on first reading. On the other hand, the county statute specifically allows a second vote, as noted above.
- How should a city consider vacant seats and members excused from voting when applying the voting rules? Under the general rule requiring a majority of all the members of the council, the city statute excludes those who are excused, but doesn’t mention vacant seats. The two-thirds provision excludes vacant seats, but not those who are excused.
- We still don’t have clarification thetdefination date of introduction for non-160D ordinances.
These statutes leave some important questions unanswered. Failure to meet the voting requirements for passing a local ordinance puts a local government at risk of a legal challenge. Boards must do their best, relying on advice of counsel, to get it right, knowing that it may take a lawsuit and judge’s interpretation of legislative intent to know the final answer.
The post The Ordinance Voting Statutes and the Meaning of the “Date of Introduction” appeared first on Coates’ Canons NC Local Government Law.
