Rediscovered law turns nonvotes into ‘yes’ votes

Jennifer Kho

COSTA MESA -- Councilwoman Karen Robinson’s decision to abstain from

voting on whether to take another look at part of the proposed Town

Center project Monday didn’t seem out of the ordinary.

After all, she had abstained from several votes Feb. 5 without having

a conflict of interest that legally prevented her from voting.

“I abstained on the same grounds as I abstained from the previous

commission appointees,” Robinson said Wednesday. “I thought we were

moving on something that all of us needed a little more information on

and time to digest. We were presented with amendments and proposals that

very day. So for me, it was just a way of saying, ‘Let me stop until I

have more information,’ and if we were going to go ahead and vote anyway,

it was my way of not voting because I didn’t want to make a mistake.”

But it turns out that abstentions without an announced conflict of

interest are not allowed according to an old, recently rediscovered

ordinance.

City Atty. Jerry Scheer, researching a query from Mayor Libby Cowan,

found a 1972 ordinance still on the books that requires abstentions to be

counted as “yes” votes if no conflict of interest exists.

Scheer declined to disclose the length of time the ordinance has been

off the city’s radar.

On Feb. 5, when the council selected commissioners in a messy process

full of substitute motions and “do-overs,” Robinson made several

abstentions because of the confusing process.

The ordinance discovery means several 2-2 votes in which Robinson

abstained should have been counted as approvals instead of denials.

Bruce Garlich, who was appointed to the Planning Commission, would

have been appointed to the Parks Commission, while Don Haul, who was not

appointed to a commission, would have become a planning commissioner.

But Robinson said she would have voted differently if her nonvotes

were counted as “yes” votes.

“Certainly there are ordinances I don’t know about, but this is a

lesson for all of us: We should know the ones governing council actions,”

she said. “My understanding of abstentions is that I’m not voting yes or

no. I’m saying I either don’t have enough information to make a decision

or I’m not prepared to make a decision.”

Robinson, Cowan and Monahan said they are not in favor of redoing the

commission appointments, unless Scheer deems it necessary.

“As ridiculous as that night was, it is ridiculous that [Robinson’s]

nonvote, because she was not comfortable voting, would be construed as a

‘yes’ vote,” Monahan said. “The solution is not to call for a vote until

council members are comfortable and ready to vote.”

Monahan and Robinson said they favor considering a change to the

ordinance.

The council is tentatively scheduled to discuss the matter at a study

session Monday.