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Barton Confirms “Mayor’s Vote Is Binding”, Cliff Gibson Now Represents City in Siemens Fiasco – Videos

October 9th, 2014 by






After researching the issue of whether the mayor is allowed to vote at a city council meeting where the council members have a split voteof 4–4, city attorney Witt Barton has confirmed that Mayor Joe Rogers ……

can cast the final and deciding vote on the issue of hiring local attorney Cliff Gibson to represent the city of Monticello in the ongoing series of issues with Siemens in the water meter and water line renovation project ((which is what happened Tuesday night).

Andrea Chambers addressed the City Council at their regularly scheduled meeting Tuesday evening, October 7, to discuss problems with the Water Department’s billing system. She explained that, due to software issues and occasional human error in reading the meters during transition from the original water meters to the new Siemens-installed water meters, the August water bills had to be estimated. She also reported that approximately one-fourth of the September water bills have errors, and are having to be adjusted individually, causing an extreme increase in workload for the Water Department employees, and delay in sending out water bills.

After considerable discussion, the Council voted to waive late fees on water bills this month, but retain the customary shut-off date of the 25th. This would prevent the customers from being impacted in a negative way by the water bills being mailed late.

After further discussion, the Council established that the new water meters measure the water in 10 gallon increments instead of 100 gallon increments that the Water Department uses for billing purposes, so the bills have to be adjusted to reflect that difference. This problem was caused by Siemens installing a different type of water meter than the type specified in the contract. Without consulting the City Council or the Water Department, Siemens installed a type of meter that automatically sends the meter data to the Water Department for computerized billing. The Council had contracted with Siemens to purchase meters that would be read electronically, on location, by Water Department employees. A discussion ensued about whether the City can refuse these meters, now that they have been installed for two months, and have the meters they contracted for, installed.

Members of the Council questioned the Siemens representative about the progress of the water pipe repair and replacement work for which $7 Million has already been paid. Council members asked where and when Siemens would begin replacing damaged and leaking water lines. There was no definitive answer given.

Alderman Raymond Hubbard raised the point that Siemens was supposed to give the Council detailed maps showing exactly what needed to be repaired and the exact location.  He stated that seven months into the contract, the Council still has not received that information.

Council member Beverly Hudson said, “I just want Siemens to do what they promised us they’d do.”  She then made the motion to hire local attorney Cliff Gibson to assist city attorney Witt Barton in dealing with the many Siemens issues.

City Attorney Whit Barton was asked about hiring Gibson. Mr. Barton stated that the independent representatives should only be hired if the Council determines they need to enter into litigation with Siemens regarding the execution of the contract. Mr. Barton stated it was his opinion that the Council is not to that point yet. He stated that he believes the situation is approaching that point, but that it is not there yet.

After lengthy discussion, the Council voted on whether to hire Gibson. The vote was tied 4 – 4.  Mayor Rogers cast the tie-breaking vote in favor hiring him.

Alderman Joe Meeds stated that the mayor couldn’t legally vote in favor of an issue, but only to fail it. City attorney Witt Barton recommended that Mayor Rogers put his vote on the record, and Barton would reasearch the issue Wednesday morning and notify the city.

The City Council and City employees were exhorted by Alderman Claudia Hartness to work with Siemens and be fully available and cooperative to help them in their efforts.

Alderman Tim Chase made a motion that no further work be done by Siemens in regard to water line repairs, until the billing issues are resolved to the Council’s and Water Department’s satisfaction. The motion passed.

6 Responses to “Barton Confirms “Mayor’s Vote Is Binding”, Cliff Gibson Now Represents City in Siemens Fiasco – Videos”

  1. Thomas "Sonny" Thornhill says:

    I had to do some extensive research on this it took me about four minutes to look it up.

    http://www.arml.org/publications_city_town_0205-3.html

    Q:When can the mayor vote?

    A: Whenever the mayor’s vote is needed to pass an ordinance, bylaw, order or resolution. Ark. Code Ann. §§ 14-43-501 (first class cities); 14-44-107 (second class cities); 14-45-105 (incorporated town); see also Gibson v. City of Trumann, 311 Ark. 561, 845 S.W.2d 515 (1993). An obvious example is when the vote is tied, for example, three-to-three on a six-member council. The mayor could cast the fourth vote needed for passage. A tie is not the only situation in which a mayor’s vote might be needed to pass, however. For example, in question 2 we had a 3-1 vote on a six member council. This could be the result of absence and/or abstention of two council members. We don’t have a tie, but three votes is not enough for passage. The mayor may cast the fourth vote in order to pass the item. Suppose the vote in the foregoing scenario is 2-2. The mayor cannot vote to “break the tie” because his vote would only create three in favor, again not enough on a six-member council. There are two exceptions to the mayor’s right to vote for passage of an item. The Arkansas Supreme Court has ruled that a mayor may not vote to amend or repeal an initiative measure enacted by a vote of the people. Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984). In addition, the Mayor may not vote to enact an emergency clause. Ops. Atty. Gen. No. 96-155; 85-174.

    QCan the mayor vote against an ordinance, resolution, etc.? ANo. The mayor may only vote for a measure, and then only when necessary to pass it. See answer to previous question. Note, however, that if the mayor is needed to make up a quorum, then he or she can defeat a measure by abstaining, since a quorum consists of a majority.

  2. Flabergasted says:

    Wow! Can you believe that the City Attorney did not know this at the meeting. Joe Meeks probably just said this to get his way. I can’t wait for Claudia Hartness to have an opponent. She is an embarrassment.

  3. Thomas "Sonny" Thornhill says:

    After extensive research I found this in four minutes.

    QCan the mayor be counted as part of the quorum? AIn cities of the first class, the mayor shall have a vote to establish a quorum of the council at any regular meeting of the council. Act 354 of 2001, Ark. Code Ann. § 14-43-501(b) (emphasis added). In second class cities, the mayor has a vote to establish a quorum of the council, with no restriction as to special or regular meetings. Ark. Code Ann. § 14-44-107. Thus, on a six-member council, if only three aldermen show up, the mayor could be the “fourth” needed to establish a quorum in accordance with the foregoing statutes.

    Q When can the mayor vote? AWhenever the mayor’s vote is needed to pass an ordinance, bylaw, order or resolution. Ark. Code Ann. §§ 14-43-501 (first class cities); 14-44-107 (second class cities); 14-45-105 (incorporated town); see also Gibson v. City of Trumann, 311 Ark. 561, 845 S.W.2d 515 (1993). An obvious example is when the vote is tied, for example, three-to-three on a six-member council. The mayor could cast the fourth vote needed for passage. A tie is not the only situation in which a mayor’s vote might be needed to pass, however. For example, in question 2 we had a 3-1 vote on a six member council. This could be the result of absence and/or abstention of two council members. We don’t have a tie, but three votes is not enough for passage. The mayor may cast the fourth vote in order to pass the item. Suppose the vote in the foregoing scenario is 2-2. The mayor cannot vote to “break the tie” because his vote would only create three in favor, again not enough on a six-member council. There are two exceptions to the mayor’s right to vote for passage of an item. The Arkansas Supreme Court has ruled that a mayor may not vote to amend or repeal an initiative measure enacted by a vote of the people. Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984). In addition, the Mayor may not vote to enact an emergency clause. Ops. Atty. Gen. No. 96-155; 85-174.

    QCan the mayor vote against an ordinance, resolution, etc.? ANo. The mayor may only vote for a measure, and then only when necessary to pass it. See answer to previous question. Note, however, that if the mayor is needed to make up a quorum, then he or she can defeat a measure by abstaining, since a quorum consists of a majority.

    Q In a first class city, if the mayor is out of town and an alderman presides at the council meeting pursuant to Ark. Code Ann. § 14-43-501(b)(2), can the presiding alderman vote? A Probably so. The statute does not say one way or the other. However, there does not appear to be any reason to deprive an alderman of a vote merely because he or she is temporarily presiding over the meeting. Note that mayors can vote under certain circumstances, so it would not appear to be the policy of the state to prohibit a presiding officer from voting. See Ark. Code Ann. 14-43-501.

  4. Thomas "Sonny" Thornhill says:

    This is from the Arkansas Municipal League.
    http://www.arml.org/publications_city_town_0205-3.html

  5. Joe Meeks says:

    @ flabbergasted – Joe Meeks done this to make sure the mayors vote was proper. It was not to get my way. Any responsible elected official should question actions when they are not sure if proper procedure is being followed.

    Joe Meeks

  6. sueb says:

    The Mayor knew he could vote.Rogers WILL NOT break any laws that for sure!!!Thank you Sonny sorry we can’t pay you Surely Wit knew but wanted to make sure it was right LOL Sad.

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