by Mark Moriarty
The time was half past midnight. The meeting droned into its eleventh hour. The mayor looked down at the agenda, “Next. Well, actually, that is it. We are at the end of the agenda.”
“Thank God,” proclaimed a colleague.
The mayor continued, “So, therefore, we are adjourned,” and banged the gavel.
“Good meeting, guys,” said a recently elected commissioner. Nobody listened. People had tuned out hours ago. She repeated herself, “Good meeting, guys.” This time a little louder. Again, no response. People gathered their things and headed for the exits.
Maybe she was trying to convince herself that it was a good meeting. Maybe she just didn’t know better.
Parliamentary procedure, or parliamentary law, refers to the rules for a meeting — that is, the agreed upon rules a group of people use when they come together, present and discuss choices, and make decisions.
This article examines parliamentary law and how implementing certain parliamentary procedures can streamline meetings, make them more efficient, productive, and make good use of everyone’s time — and, perhaps, avoid the kind of marathon torture that only a newcomer could call a “good meeting.”
Courts have recognized the use and authority of parliamentary procedures for governmental bodies and that, in certain circumstances, those procedures can be binding. Here is a sampling of judicial comments. In Cabrol v. Town of Youngsville, 106 F.3d 101 (5th Cir. 1997), the court stated:
“Robert’s Rules of Order is a leading source of parliamentary law in the United States, first published in this country in 1876. Cleary v. News Corp., 30 F.3d 1255, 1257 (9th Cir. 1994). Unless adopted by some type of legislative enactment, we view Robert’s Rules of Order as purely parliamentary procedure governing the operation of the town council upon convening, see Mapp v. Lawaetz, 882 F.2d 49, 52 n. 1 (3d Cir. 1989), which we examine only in the context of the council’s conduct’s compliance with statutory and constitutional requirements, see Brown v. Hansen, 973 F.2d 1118, 1122 (3d Cir. 1992); George v. Local Union No. 639, 825 F. Supp. 328, 333 (D.D.C. 1993).”
In Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940 (Fla. 5th DCA 1988), the court wrote:
“[T]he circuit court held that petitioners’ due process rights had been violated by the county commissioners’ failure to abide by their initial tie vote on October 21, 1985, which under proper parliamentary procedure would have defeated the motion to approve Battaglia’s application. Under the Orange County Code, an unsuccessful applicant must wait nine months before applying for another hearing concerning the same property; the circuit court reasoned that the 3-2 vote on October 28, 1985, violated this provision.”
The Fifth DCA held:
“[T]he Orange County Code does not contain a provision that a tie vote constitutes a final decision in a zoning matter. The circuit court stated that in the absence of a formal rule, a deliberative body must follow generally accepted rules of parliamentary procedure. We do not agree. Parliamentary rules not adopted as part of a governmental body’s organic law may be waived or disregarded, and courts will not enforce their observance. See 59 Am. Jur. 2d Parliamentary Law §4 (1987). The failure of the county commissioners to observe a general rule of parliamentary procedure did not violate any party’s procedural due process rights.”
However, in Brodeur v. Miami-Dade Cnty., 81 So. 3d 491, 492 (2012), the court stated:
“[A]s the [c]ounty [c]ode stood on the day of the CZAB meeting, [§]33-308 specified that the tie vote triggered the carryover to the next regularly scheduled meeting. The plain language of the ordinance seemed to countermand the Yogi Berra-like proposition, a general principle of parliamentary procedure, that a matter is not over until it’s over.”
In this case, in what the court called “the unique facts in this record,” the court found that Brodeur, a member of the board in question, had standing in this dispute over the application of a rule.1
In Board of County Comm’rs of Sarasota County v. Webber, 658 So. 2d 1069 (Fla. 2d DCA 1995), the court held that “unless some right of a third person intervenes, all deliberative bodies have a right to reconsider their proceedings during their session, as often as they think proper, when not otherwise provided by law, and it is the final result only which is to be regarded as the thing done.”2 The Florida Supreme Court recognized this rudimentary principle long ago by stating that “[a]ll deliberative bodies, during their session, have a right to reconsider their proceedings as they deem proper, when not otherwise provided by law, and it is the final result only which is to be regarded as the thing done.”3
Charters and Codes
Charters, bylaws, and codes will often define limited rules, such as “quorum” and “what constitutes a majority” and will refer to or incorporate a published parliamentary authority. For example: “The rules of procedure in this subdivision shall govern all meetings of city council. Except as otherwise provided by the [c]harter and this [c]ode, the conduct of business of the city council shall be governed by Robert’s Rules of Order (latest edition).”
Notice, this provision requires adherence to Robert’s Rules of Procedure. According to the caselaw above, the city council’s final results, except as otherwise provided in the charter or the code, will be contingent or dependent upon Robert’s Rules of Procedure.
An alternative provision only references a parliamentary authority. For example: “The [c]ity [c]ommission shall determine its own regulations, rules, and order of business. In promulgating the regulations, rules, and order of business, the [c]ity [c]ommission shall be guided by Robert’s Rules of Order (as revised).”
This provision does not require adherence to Robert’s Rules of Procedure. The city commission’s final results are not contingent or dependent upon some outside authority. It remains in control.
Below are some suggested procedures to produce better, more productive meetings. Utilizing them can streamline meetings, make them more efficient, productive, and help make good use of everyone’s time.
• Distribute a Clear Agenda in Advance — A clear agenda provides a road map for all involved. Include on the agenda suggested motions. The suggested motions will structure the debate. When a motion is stated clearly and published beforehand, the reaction of the public is focused and almost always enlightening. When an agenda just lobs up an issue without a position, the reaction of the public is often unfocused, much less helpful, and usually unpredictable. Put all routine or noncontroversial matters on a consent agenda that can be approved in gross or without debate or amendment by a single vote. There is no requirement to discuss every item on an agenda. Any member wanting to discuss a matter on a consent agenda can request to do so.
• Prepare for the Meeting — The presumption when distributing an agenda in advance of a meeting is that the materials will be read and studied prior to the meeting, and that members will come to the meeting ready to debate and act. Familiarizing oneself with the issues during a meeting is not proper. Members have no right to read papers during a meeting. The rule is protection against the use of reading as a means of prolonging debate and delaying business. The convenience of the assembly is more important than that of a single member.
• Elect an Effective Person to Preside or Chair the Meeting — The chair is ideally someone capable of implementing and administering parliamentary rules consistent with a charter, statutes, standing rules, bylaws, or other rules of the organization. He or she needs to be able to interrupt repetitive and offensive comments, the long-winded, and those people musing aloud about half-baked concepts. Frivolous comments can be ruled out of order. The chair or any other member can “call a member to order.” Comments and members declared out of order are not entitled to be recognized.
• Request Recognition to Speak — Everybody in a meeting cannot talk at once; turns must be taken. Anyone wanting to speak, therefore, needs to be recognized by the chair. If the speaker is entitled to speak at the time, the chair will recognize the speaker, normally by announcing the person’s name or title. Once a speaker has been recognized, he or she has the exclusive right to speak without interruption.4
For smaller boards (typically less than 12), certain modifications permitting greater flexibility and informality are commonly allowed, but a board may still choose to follow more formal procedures during confrontational items, or for subjects that are likely to subject the board to publicity or a lawsuit.
• A Motion Must Precede Any Discussion of an Issue — All discussion should be relevant to a pending motion. In other words, all comments or remarks must be germane to the question being considered by the assembly. All statements must have bearing on whether the immediately pending motion should or should not be adopted. All other statements, comments, or remarks are out of order. “The general rule against discussion without a motion is one of parliamentary procedure’s powerful tools for keeping business ‘on track,’ and an observance of its spirit can be an important factor in making even a very small meeting rapidly moving and interesting.”5
• Set Reasonable Limits — The number and length of meetings, speeches, presentations, and public comment can all be set by rule. The standard provided in Robert’s Rules of Order is a speaker can speak two times per item for 10 minutes each time.6 This standard can be made more restrictive or more liberal upon a two-thirds vote of the group.
F.S. §286.0114 requires public comment:
“Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission. The opportunity to be heard need not occur at the same meeting at which the board or commission takes official action on the proposition if the opportunity occurs at a meeting that is during the decision-making process and is within reasonable proximity in time before the meeting at which the board or commission takes the official action.”
The opportunity to be heard needs to occur at or before the meeting at which the official action takes place. The law does not otherwise specify when or how much. Subsection (4)(d) authorizes a board or commission to “[d]esignate a specified period…for public comment.”
F.S. §125.66(4)(a)7 requires additional public comment when adopting ordinances and some resolutions, providing: “The board of county commissioners shall hold a public hearing on the proposed ordinance or resolution and may, upon the conclusion of the hearing, immediately adopt the ordinance or resolution.”
Public comment policies typically contain a public comment period at the beginning of a meeting, at the end of a meeting, or when comment goes to a specific item on an agenda. Comment periods can be limited or unlimited. Time limits frequently range from 15 to 30 minutes per period. A public commenter’s time can be limited or unlimited. Time limits frequently range from one to five minutes per speaker.
• Understand and Use Unanimous Consent When Appropriate — In cases in which there seems to be no opposition in routine business or on questions of little importance, time can often be saved by the procedure of unanimous consent. Unanimous consent allows action to be taken and items to be approved without formal votes. To obtain unanimous consent, the chair states that “if there is no objection” the action will be taken. If there is an objection, the action is not approved.
Unanimous consent is not consensus decisionmaking. Parliamentary procedure is premised upon majority rule. Majority rule requires each member of the group to make arguments that appeal to at least half the participants.
As explained in Robinson v. Stewart, 161 So. 3d 589 (Fla. 1st DCA 2015):
“The United States and Florida constitutions require at least a majority vote of both houses of a representative legislative body and the approval of the chief executive as a prerequisite to adoption of public policy. This significant hurdle is not simply a matter of parliamentary procedure. The procedure reflects a profound understanding that, in the long run, a government that acts to implement policies unsupported by general consensus ceases to be a democracy and will eventually become unstable. The process was not designed to be efficient, but to achieve other goals, one of which was to prevent the adoption of controversial policies not enjoying broad public support. Delegation of the power to make policy decisions from a democratically elected legislative branch to any entity able to act in the absence of consensus reduces the power of democratic institutions and divorces the government from the people.8”
Unanimous consent sounds good, but it should never be the goal or basis for a decision. Inflexible minorities or individuals can thwart the will of the majority. In the 18th century, the Polish legislature utilized a liberum veto. The veto was a parliamentary device that allowed any member of the legislature to object and kill any measure by declaring Nie pozwalam (“I do not allow!”). The legislature became paralyzed. The country eventually collapsed in part due to its inability to enact legislation.
Opposition to decisions often can be attributable to people feeling their voice had not been heard or their viewpoint had not been considered, and 18th century Poland demonstrated that guaranteeing everybody a veto does not work. Relying upon and embracing the Yogi Berra principle of parliamentary procedure identified in Brodeur, that a matter is not over until it’s over, provides uncertain results. The middle ground is to establish rules of procedure. While many people may regret or voice disagreement with a decision after it is made, the outcome will be acceptable if the decision is based upon rules approved prior to the decision.
1 Brodeur, 81 So. 3d at 492.
2 67A C.J.S. Parliamentary Law §9 (1978); see also 59 Am. Jur. 2d Parliamentary Law §15 (1987); Toffolon v. Zoning Bd. of Appeals of Town of Plainville, 155 Conn. 558, 236 A.2d 96 (1967) (stating same rule).
3 Crawford v. Gilchrist, 59 So. 963, 969 (1912).
4 Interruptions are allowable only in limited circumstances.
5 Robert’s Rules of Order Newly Revised 34 (11th ed. 2011).
6 Id. at 387, 389.
7 The applicable law for municipalities is §166.041(3)(c)(1).
8 Stewart, 161 So. 3d at 600 (quoting F. Scott Boyd, Legislative Checks on Rulemaking Under Florida’s New APA, 24 Fla. St. U. L. Rev. 309, 316 (1997)).
Mark Moriarty is a registered parliamentarian and is certified by The Florida Bar as a specialist in city, county, and local government law. He earned his J.D. in 1996 from the Delaware Law School and is an assistant city attorney for the City of Cape Coral. He is the author of .
This column is submitted on behalf of the City, County and Local Government Law Section, Robert Lon Teitler, chair, and David Miller, editor.