Council nullifies Potter nomination at urging of city attorney

Vogeltanz, Zuckerman fought to keep nomination, vote

Discon, Strong-Thompson to re-nominate Dec. 5 as ‘remedy’ to Open Meetings violation

Rules do not require committee to meet, just make nomination

Potter expected to receive nomination again

Still faces long odds at Dec. 21 appointment vote

MANDEVILLE — The City Council voted 3-2 (November 21st) in effect to nullify a nomination to the Planning & Zoning Commission it had accepted at the previous meeting after it was acknowledged that the nominating committee likely violated the state’s Open Meetings Law by meeting in private.

Shawn Potter was nominated October 24th by Councilman at Large Scott Discon and District I Councilwoman Cynthia Strong-Thompson who were appointed to a nominating committee by Discon beforehand.

At last night’s regular City Council meeting (November 21st), Discon informed the chamber of his Open Meetings violation, brought to the city attorney’s attention by District II Councilman Kevin Vogeltanz.

City Attorney Elizabeth Sconzert told the council that to avoid potential legal challenges, they should meet again to make the Potter nomination, but this time advertise their meeting and hold it in public.

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I have no reason to believe that that nomination (Potter) is going to change, but the purpose of that meeting is to allow the public to come and comment on the qualifications during that nominating.
— City Attorney Elizabeth Sconzert

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“I think you just need to go back to where the defect is identified. So I think you would need to set a meeting to hold the nominating committee’s discussion of the applicants, and you’d have all the applicants available for that discussion, because it is required under CLURO 2.1.2 that the applicants are there for that hearing,” Sconzert told the council members.

However, this appears to be a misreading of the Comprehensive Land Use Regulation Ordinance (CLURO) §2.1.2, which reads in part:

“No person shall be appointed to the Planning Commission until a public hearing before the City Council attended by the nominee has been held.”

But the nominating committee is not the full City Council — it’s only two of its members, Discon and Strong-Thompson.

The “public hearing” requirement would be satisfied at the regularly scheduled City Council meeting where the actual vote to appoint occurs, not when a small committee might meet to determine their nominee.

The new nomination meeting is scheduled for December 5th at 4:30 p.m. in Council Chambers, with a confirmation vote set for the next regular City Council meeting on December 19th.

But Vogeltanz challenged the delay, arguing that the Open Meetings violation occurred incidental to the nomination itself, which was made during the regular City Council meeting October 24th where it was on the advertised agenda.

“It would seem to me that all the public notice requirements were satisfied. The nomination of Mr. Potter was put into a timely and properly noticed agenda, with timely properly noticed the debate and the vote tonight,” he said.

Resolution 24-60 created new rules for appointing P&Z members as well as the nominating committee, but it does not explicitly say the committee has to meet outside of a regular meeting. Rule 9 directs the nominating committee to make a motion and a second, and makes no mention of a meeting.

Councilman at Large Jason Zuckerman joined Vogeltanz in his dissent:

“That seems like sort of an extreme remedy. … So is the nomination not valid, is that what you are saying?”

Sconzert replied, “I think you just need to start from that process (nomination) over. To make sure that you give those opportunities to the public. That would make it compliant … If you have a violation, you have to correct the defect.”

Zuckerman asked Discon to confirm that the vote last night was going to nullify the Potter nomination: “So Mr. Chairman (Discon)… so this ruling is in effect … voiding the nomination that was previously made (October 24th)?”

Discon replied, “That’s the way I would read it.”

The Potter nomination was likely to have failed last night as Zuckerman, District III Councilwoman Jill McGuire, and Vogeltanz had voiced their opposition to the Potter nomination at the previous meeting.

Because Discon, who also currently serves as the council chairman and presiding officer at meetings, ruled from the chair to cancel the Potter vote last night, Vogeltanz appealed that ruling under Robert’s Rules of Order Newly Revised 12th Edition (RRNR).

Under RRNR (§41:63), removing items from an agenda requires a majority vote of the council, but Discon made the decision unilaterally, hence Vogeltanz’s appeal.

The appeal lost 3-2, with only Vogeltanz and Zuckerman voting to move forward with the Potter vote. McGuire sided with Discon and Strong-Thompson, citing Sconzert’s concerns about a potential legal challenge should they have rejected Potter last night.

According to RRNR (§35), because the Potter nomination had been acted upon at the previous meeting, the correct procedure would have been a “motion to rescind” a previous action, which also would have required a majority of the council to approve.

Under the state’s Open Meetings Law, each violation of the law could result in a $500 fine per person.

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